COLORADO COURT OF APPEALS                                        2017COA122


Court of Appeals No. 15CA1920
Adams County District Court No. 14CR679
Honorable Francis C. Wasserman, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Martin Castruita Espinoza,

Defendant-Appellant.


                 JUDGMENT AFFIRMED, SENTENCE VACATED,
                   AND CASE REMANDED WITH DIRECTIONS

                                 Division III
                         Opinion by JUDGE FREYRE
                         Webb and Booras, JJ., concur

                        Announced September 21, 2017


Cynthia H. Coffman, Attorney General, Megan C. Rasband, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Lauretta A. Martin Neff, Alternate Defense Counsel, Bayfield, Colorado, for
Defendant-Appellant
¶1    Defendant, Martin Castruita Espinoza, appeals the judgment

 of conviction entered on jury verdicts finding him guilty of ten

 counts of attempted murder, twenty-three counts of first degree

 arson, ten crime of violence counts, and multiple misdemeanors.

 Espinoza raises two issues on appeal. First, he challenges the

 admissibility of his statements to police, alleging that because he

 was in custody during the questioning, the statements were

 inadmissible. Second, he contends the trial court misconstrued the

 applicable sentencing statutes and erroneously concluded it had to

 impose consecutive sentences. The latter contention involves

 applying existing law to unique facts.

¶2    We disagree with his first contention and affirm the judgments

 of conviction. However, we agree with his second contention, vacate

 his 160-year prison sentence, and remand for resentencing.

                           I.   Background

¶3    This case involved the burning of an apartment complex in

 which Espinoza had previously lived. Espinoza’s mother lived in

 apartment 303, and Espinoza had lived with her until two months

 before the fire. The day before the fire, Espinoza’s mother placed all




                                   1
 of Espinoza’s personal belongings on the apartment’s balcony. She

 texted him and said that he needed to retrieve them.

¶4    The next day, Adams County Sheriff’s deputies and firefighters

 responded to a structure fire and found the apartment complex

 engulfed in flames. All the residents were able to leave the building.

 Espinoza, his mother, his aunt, and his cousin were part of the

 crowd watching the building burn. While on scene, Espinoza’s aunt

 and cousin told the police that they were concerned that Espinoza

 was potentially involved with the fire.

¶5    The police interviewed Espinoza and his family members as

 part of the fire investigation. A deputy transported Espinoza to the

 police station, where he waited for several hours before being

 interviewed.1 Espinoza told the police that he had been

 panhandling at a Walmart across the street from the apartment

 complex when he saw people running toward the building, saying



 1 The trial court did not make a finding of the exact amount of time
 Espinoza waited in the interview room. Espinoza states it was
 “nearly five hours.” He was brought to the police station
 somewhere between a half hour and forty-five minutes after 1:44
 p.m. No testimony was offered regarding how long it took to get to
 the police station from the scene or how long it took Espinoza to get
 from the patrol car to the interview room.
                                    2
 there was a fire. After observing the fire for himself, Espinoza called

 his sister from the Walmart courtesy phone and told her he was

 across the street at Walmart and could see the fire. Police ended

 the interview when Espinoza invoked his right to counsel.

¶6    A Walmart surveillance video showed that the fire started on

 the third floor of the apartment building, that Espinoza was in the

 Walmart parking lot, and that he used the courtesy phone. Arson

 investigators concluded that the fire was incendiary and had started

 on the balcony of apartment 303. A Walmart employee described a

 male matching Espinoza’s description using the courtesy phone and

 smelling like charcoal, lighter fluid, and smoke.

                     II.   Custodial Interrogation

¶7    Espinoza contends that the trial court failed to consider

 several factors in finding that he was not in custody at the police

 station, including the several-hour wait in the interview room, the

 presence of two armed detectives during the interview, and the

 confrontational question near the end of the interview. Because the

 trial court’s detailed factual findings, supported by the record, show

 that Espinoza was not in custody, we affirm its order denying

 Espinoza’s motion to suppress.

                                    3
                           A.     Additional Facts

¶8      Before trial, Espinoza moved to suppress his statements from

 a videotaped interview with the police. He claimed that he was in

 custody and that the police failed to give him Miranda2 warnings.

 The trial court rejected his custody claim and, in a detailed order,

 made the following findings:

            Police learned that Espinoza was a potential suspect at

             the scene. Acknowledging that they had no probable

             cause, the police requested that he come to the police

             station for an interview, and Espinoza agreed.

            Espinoza had no transportation and accepted a ride from

             an officer.

            Espinoza consented to a pat-down search before entering

             the officer’s car.

            Police did not handcuff Espinoza.

            Police found a lighter in Espinoza’s pocket and asked to

             keep it. Espinoza did not object.




 2   Miranda v. Arizona, 384 U.S. 436 (1966).
                                      4
   Once at the police station, an officer took Espinoza

    through at least one locked door to the detective division

    on the second floor.

   The officer placed Espinoza in an interview room,

    unrestrained, and provided him with a bottle of water.

   Espinoza’s mother and stepfather were also at the police

    station in a different room.

   After “some time” and the completion of two other

    interviews, two detectives interviewed Espinoza.

   The tone of the interview was conversational, and the

    detectives used no coercive interrogation methods or

    techniques.

   The detectives wore plain clothes.

   One of the detectives told Espinoza that he was not

    under arrest and was free to leave.

   Although closed, the door was located next to Espinoza

    and nothing blocked his exit from the interview room.

   Espinoza acknowledged a history of substance abuse and

    became emotional when speaking about his mother.


                            5
          Espinoza was not psychologically unstable, did not

           appear intellectually impaired, was not physically

           impaired, was not ill, and was not incoherent.

          Espinoza was responsive to questions and very

           cooperative.

          When confronted with potential evidence that might

           refute his statements, Espinoza stated he understood the

           criminal justice system. He explained that if he was a

           suspect, he wanted a lawyer and wanted to leave. He

           repeated this statement.

          The detectives released Espinoza within five minutes of

           his request to leave and after collecting his clothing as

           evidence.

          Espinoza became emotional during the clothing

           collection, and the detectives never informed him he

           could refuse their request to collect it.

          The interview lasted for a relatively short period of time.

Although not mentioned by the court, the record also established

the following:

          Both detectives were armed during the interrogation.
                                   6
           The interrogation was in a secured, non-public area of

            the police station. There were double doors that needed

            to be unlocked to enter, but did not need to be unlocked

            to exit.

           Espinoza sat in the interview room for several hours

            before the interview began.

           The interview lasted twenty-seven minutes.

¶9     The trial court concluded that the totality of the circumstances

  demonstrated that Espinoza voluntarily spoke with the detectives

  and was not in custody when he did so.

              B.   Standard of Review and Applicable Law

¶ 10   Whether a defendant is “in custody” for Miranda purposes

  presents a mixed question of law and fact. Effland v. People, 240

  P.3d 868, 873 (Colo. 2010). We defer to the trial court’s factual

  findings and uphold them on review where they are supported by

  competent evidence in the record. Id. at 878; People v. Matheny, 46

  P.3d 453, 462 (Colo. 2002). However, we review the legal effect of

  the facts de novo. Matheny, 46 P.3d at 462. We also may consider

  undisputed facts evident in the record, including those shown by a



                                    7
  video recording of an interrogation. People v. Pleshakov, 2013 CO

  18, ¶ 16.

¶ 11   A suspect is “in custody” for purposes of Miranda if “under the

  totality of the circumstances, a reasonable person in the

  defendant’s position would consider himself to be deprived of his

  freedom of action to the degree associated with a formal arrest.”

  Matheny, 46 P.3d at 468. In determining custody, a court should

  consider the following non-exhaustive factors, none of which is

  determinative:

              (1) the time, place, and purpose of the
              encounter; (2) the persons present during the
              interrogation; (3) the words spoken by the
              officer to the defendant; (4) the officer’s tone of
              voice and general demeanor; (5) the length and
              mood of the interrogation; (6) whether any
              limitation of movement or other form of
              restraint was placed on the defendant during
              the interrogation; (7) the officer’s response to
              any questions asked by the defendant; (8)
              whether directions were given to the defendant
              during the interrogation; and (9) the
              defendant’s verbal or nonverbal response to
              such directions.

  People v. Begay, 2014 CO 41, ¶ 17 (quoting Matheny, 46 P.3d at

  465-66); Effland, 240 P.3d at 874. Additionally, the court may

  consider the following circumstances:


                                       8
            (10) “whether the officers told the defendant he was free

            to leave”;

            (11) “whether the officers used a degree of force

            traditionally associated with custody and arrest”; and

            (12) whether the defendant “appeared to be the prime

            suspect in the investigation.”

  People v. Holt, 233 P.3d 1194, 1195, 1197 (Colo. 2010). The

  Miranda custody determination requires applying an objective,

  reasonable person standard. Matheny, 46 P.3d at 465.

                           C.    Application

¶ 12   We conclude that the trial court properly found that Espinoza

  was not in custody for Miranda purposes when detectives

  interviewed him. The record shows that Espinoza agreed to speak

  with the detectives, consented to a pat-down search, and rode

  unrestrained to the police station. See Pleshakov, ¶¶ 27-34 (the

  defendant was not in custody even though police ordered him out of

  his vehicle and patted him down for weapons). The detectives told

  Espinoza he was not under arrest and was free to leave. See

  Matheny, 46 P.3d at 467 (telling the defendant he was not under

  arrest and asking him to come to the police station supported a

                                   9
  finding of no custody); see also People v. Hankins, 201 P.3d 1215,

  1219 (Colo. 2009) (repeated statements to the defendant that he

  was free to leave supported a finding of no custody).

¶ 13   The record further shows that Espinoza was not physically

  restrained and that the tone of the interview was conversational.

  See People v. Cowart, 244 P.3d 1199, 1204 (Colo. 2010) (lack of

  physical restraint and officer’s conversational tone supported the

  conclusion that defendant was not in custody). And, although

  Espinoza was separated from his mother and stepfather, the record

  supports the court’s finding that the detectives did not employ

  coercive interrogation methods. See People v. Minjarez, 81 P.3d

  348, 353 (Colo. 2003) (“The Miranda Court was particularly

  concerned about . . . coercive interrogation techniques applied to

  individuals who are isolated and deprived of contact with friends

  and family.”).

¶ 14   We are not persuaded by Espinoza’s reliance on People v.

  Elmarr, where the court found the defendant was in custody based

  in part on the officers’ transport of the defendant to the police

  station, his placement into a nonpublic room with the door closed,

  fifty minutes of aggressive questioning, and detention at the police

                                    10
  station for nearly an hour after he asked to leave. 181 P.3d 1157,

  1163 (Colo. 2008). The court noted that the case was a close one

  and said, “[i]mportantly, [Elmarr] was never told he was not under

  arrest, or that he was free to leave.” Id.

¶ 15   In contrast, the detectives told Espinoza that he was not under

  arrest and was free to leave. Moreover, the interview was

  conversational and lasted for only twenty-seven minutes. Finally,

  when Espinoza requested counsel, the police immediately ceased

  questioning and released him five minutes later.

¶ 16   Additionally, we are not convinced that the detectives’

  confrontation of Espinoza with evidence that might refute his

  statement requires a different result. Espinoza said that he

  understood the criminal justice system and immediately invoked

  his right to counsel in response to the confrontation. See People v.

  Figueroa-Ortega, 2012 CO 51, ¶ 10 (“[M]erely confronting a suspect

  with the evidence against him . . . does not, by itself, constitute an

  infringement on his liberty, much less the kind of infringement

  associated with a formal arrest.”).

¶ 17   Further, while we agree that the detectives’ visible firearms

  were part of the totality of the circumstances, they did not create a

                                     11
  custodial situation because the detectives did not make a show of

  force or restrain Espinoza in any way. See People v. Barraza, 2013

  CO 20, ¶ 22 (the presence of four uniformed officers did not create a

  custodial situation where none of them drew weapons, handcuffed

  the defendant, or used any type of force against him).

¶ 18   After considering the totality of the circumstances, we

  conclude that substantial record evidence supports the court’s

  finding that Espinoza was not restrained to the degree associated

  with a formal arrest and therefore was not in custody when

  interviewed by the detectives.

              III.   Concurrent or Consecutive Sentencing

¶ 19   Espinoza next contends that the court misapprehended the

  applicable law when it ruled that it was required to impose

  consecutive sentences for his attempted first degree murder

  convictions. We agree.

                           A.   Additional Facts

¶ 20   Espinoza does not dispute that the prosecution’s evidence

  established that he started a fire on the balcony of his mother’s

  apartment. As relevant to the sentencing issue, a jury convicted

  him of ten counts of attempted first degree murder, each naming a

                                    12
  different victim, and ten crime of violence sentence enhancers. The

  court sentenced Espinoza to sixteen years in prison for each

  attempted murder conviction and concluded that the crime of

  violence statute, section 18-1.3-406(1)(a), C.R.S. 2017, mandated

  consecutive sentences. It reasoned “that a person convicted of two

  or more separate crimes of violence arising out of the same incident

  shall be sentenced for such crimes so that the sentences are served

  consecutively rather than concurrently,” and that “the Court of

  Appeals [has] held that when each crime is a separate crime of

  violence, this section requires the Court to impose consecutive

  sentences for each offense.” It concluded that each attempted first

  degree murder conviction constituted a separate crime of violence

  requiring consecutive sentences.

              B.    Standard of Review and Applicable Law

¶ 21   We review a trial court’s sentencing decision for an abuse of

  discretion. People v. Muckle, 107 P.3d 380, 382 (Colo. 2005). A

  trial court abuses its discretion if its ruling is “manifestly arbitrary,

  unreasonable, unfair, or contrary to law.” Dickinson v. Lincoln Bldg.

  Corp., 2015 COA 170M, ¶ 7. However, we review questions of

  statutory interpretation, including a trial court’s application of the

                                     13
  sentencing statutes, de novo. Juhl v. People, 172 P.3d 896, 902

  (Colo. 2007); People v. Torrez, 2013 COA 37, ¶ 32; People v. Phillips,

  2012 COA 176, ¶ 171.

¶ 22   Our primary goal is to give effect to the General Assembly’s

  purpose or intent in enacting the statute. Jefferson Cty. Bd. of

  Equalization v. Gerganoff, 241 P.3d 932, 935 (Colo. 2010); People v.

  Cooper, 27 P.3d 348, 354 (Colo. 2001). We begin by looking to the

  express language of the statute. Gerganoff, 241 P.3d at 935. We

  must read words and phrases “in context” and in accordance with

  “the rules of grammar and common usage.” § 2-4-101, C.R.S.

  2017; Griego v. People, 19 P.3d 1, 7 (Colo. 2001). In so doing, we

  must give effect to the entire statute. § 2-4-201(1)(b), C.R.S. 2017;

  see also A.S. v. People, 2013 CO 63, ¶ 12.

¶ 23   If the statutory language is unambiguous and the legislative

  intent is reasonably certain, we look no further. Gerganoff, 241

  P.3d at 935. However, if the language is ambiguous, or if the

  statute appears to conflict with other provisions, then we may

  consider other factors, such as legislative history or the

  consequences of a particular construction. § 2-4-203, C.R.S. 2017;

  Cooper, 27 P.3d at 354.

                                    14
¶ 24   If statutes governing the same subject appear to conflict, we

  must attempt to reconcile them by giving “harmonious and sensible

  effect” to all parts of the statutory scheme. Cooper, 27 P.3d at 354

  (quoting Martin v. People, 27 P.3d 846, 851 (Colo. 2001)). If the

  conflict is irreconcilable, however, a “special or local provision

  prevails as an exception to [a] general provision, unless the general

  provision is the later adoption and the manifest intent is that the

  general provision prevail.” Id. at 355 (quoting § 2-4-205, C.R.S.

  2017).

¶ 25   When a court “imposes consecutive sentences under the

  mistaken belief that it has no discretion to impose concurrent

  sentences,” “[a] remand for resentencing is appropriate.” People v.

  O’Connell, 134 P.3d 460, 466 (Colo. App. 2005).

                             C.    Application

¶ 26   We begin by concluding that the general provision of

  section 18-1-408(3), C.R.S. 2017, which authorizes discretionary

  consecutive sentences in multi-victim cases, can be reconciled with

  section 18-1.3-406(1)(a), which requires consecutive sentencing for

  “separate crimes of violence.” Next, we conclude that Espinoza’s

  ten attempted murder convictions were supported by identical

                                     15
  evidence, despite naming different victims, because the same

  evidence formed the basis of each conviction. Last, we hold that

  separately named victims do not create separate crimes of violence

  under section 18-1.3-406(1)(a) when identical evidence supports

  each conviction, and in such circumstances, a court retains

  discretion to impose concurrent sentences under

  section 18-1-408(3).

       1.     The “[I]dentical [E]vidence” Provision of Section 18-1-408(3)
             Can Be Reconciled with the “[S]eparate [C]rimes” Provision of
                                 Section 18-1.3-406(1)(a)

¶ 27        Part 4 of title 18, article 1 of the Colorado Revised Statutes,

  entitled “Rights of Defendant,” confers substantive rights “upon

  every person accused of an offense.” § 18-1-401, C.R.S. 2017.

  Under section 18-1-408, specific procedures and sentencing rules

  apply where a defendant is charged with separate counts “based on

  the same act or series of acts arising from the same criminal

  episode.” § 18-1-408(2). Where such counts “are supported by

  identical evidence . . . the sentences imposed shall run

  concurrently; except that, where multiple victims are involved, the

  court may, within its discretion, impose consecutive sentences.”

  § 18-1-408(3) (emphasis added).

                                         16
¶ 28   Section 18-1.3-406 is titled “Mandatory sentences for violent

  crimes - definitions.” It requires that “a person convicted of two or

  more separate crimes of violence arising out of the same incident

  [shall be sentenced for such crimes] so that his or her sentences are

  served consecutively rather than concurrently.” § 18-1.3-406(1)(a).3

¶ 29   At first glance, sections 18-1-408(3) and 18-1.3-406(1)(a)

  appear to conflict. Both apply to violent crimes (because part 4

  applies to every person accused), and both restrict a trial court’s

  sentencing discretion in situations where there are multiple counts

  arising from a single criminal episode. See Marquez v. People, 2013

  CO 58, ¶ 22 (“same criminal episode” under § 18-1-408(2) and

  “same incident” under § 18-1.3-406(1)(a) mean the same thing).

  One generally requires concurrent sentencing and allows

  consecutive sentencing only in circumstances involving multiple

  victims, while the other requires consecutive sentencing.




  3 Although not applicable here, we note that section
  18-1.3-406(1)(c), C.R.S. 2017, permits a court to impose concurrent
  sentences for two or more separate crimes of violence arising out of
  the same incident when one of the crimes is aggravated robbery,
  second degree assault, or escape.
                                    17
¶ 30   Several divisions of this court have reconciled these two

  provisions by reasoning that “separate crimes” under

  section 18-1.3-406(1)(a) are those crimes that are not “based on the

  same act or series of acts” and are not “supported by identical

  evidence” under section 18-1-408(2), (3). People v. O’Shaughnessy,

  275 P.3d 687, 697 (Colo. App. 2010), aff’d but criticized on other

  grounds, 2012 CO 9; People v. Jurado, 30 P.3d 769, 773 (Colo. App.

  2001); People v. Hahn, 813 P.2d 782, 784 (Colo. App. 1991).

¶ 31   We find this reconciliation persuasive. It follows from the

  ordinary meanings of “identical” and “separate.” Moreover, it gives

  harmonious and sensible effect to both provisions by continuing to

  protect defendants from excessive punishment for crimes based on

  identical evidence while, at the same time, requiring harsher

  punishments for separate acts of violence.

¶ 32   Accordingly, we conclude that sections 18-1-408(3) and

  18-1.3-406(1)(a) do not conflict, but instead provide for different

  sentencing requirements in two non-overlapping sets of

  circumstances. For multiple violent crimes arising from the same

  criminal episode, section 18-1-408(3) requires concurrent

  sentencing for counts based on the “same act or series of acts” and

                                    18
  supported by “identical evidence,” § 18-1-408(2), (3), but in cases of

  multiple victims authorizes the court to impose consecutive

  sentences in its discretion. All other violent crimes arising from the

  same criminal episode and not supported by identical evidence are

  “separate” under section 18-1.3-406(1)(a), and therefore require

  consecutive sentencing.

  2.   The Attempted First Degree Murder Convictions are Supported
                         by “[I]dentical [E]vidence”

¶ 33   Espinoza’s convictions for attempted first degree murder are

  not “separate crimes of violence” under section 18-1.3-406(1)(a).

  The relevant question in this context is whether the evidence

  supporting each conviction is identical and therefore not separate.

  See Jurado, 30 P.3d at 773 (consecutive sentencing is required

  when “evidence supporting the convictions is not ‘identical’ within

  the meaning of § 18-1-408(3)”). “To determine whether the evidence

  is identical, a court must decide whether the separate convictions

  were based on more than one distinct act and, if so, whether those

  acts were separated by time and place.” People v. Glasser, 293 P.3d

  68, 79 (Colo. App. 2011). This inquiry “is not a strict analysis to

  determine if one particular fact is necessary to one conviction, but


                                    19
  not the other, thereby making the evidence identical or not

  identical.” Juhl, 172 P.3d at 902. Instead, the answer “turns on

  whether the charges result from the same act, so that the evidence

  of the act is identical, or from two or more acts fairly considered to

  be separate acts, so that the evidence is different.” Id.

¶ 34   Here, no one disputes that a single act of arson caused the

  building to catch fire or that multiple victims suffered harm as a

  result of the single act of fire-setting. See, e.g., O’Shaughnessy, 275

  P.3d at 697 (imposing mandatory consecutive sentences for

  attempted murder, attempted aggravated robbery, and second

  degree assault was error because “all three offenses were based on

  identical evidence and occurred in a single criminal episode lasting

  less than sixty seconds”). The evidence supporting each attempted

  murder conviction was identical (one fire-setting), and no evidence

  shows that Espinoza performed separate, volitional acts against any

  of the named victims, separated by time or place. See Hahn, 813

  P.2d at 784 (“[I]f guilt of two or more crimes of violence is

  established by identical evidence, the crimes are not ‘separate[.]’”);

  cf. Qureshi v. Dist. Court, 727 P.2d 45, 47 (Colo. 1986) (the

  defendant’s initial stabbing of the victim’s abdomen followed by the

                                     20
  victim’s escape to another area of the apartment and the

  defendant’s attempted stabbing of her in the bathroom “were two

  separate and different sets of acts which occasioned two crimes”).

¶ 35   Even so, the People argue that because multiple victims are

  involved, the evidence is not identical and, therefore, the trial court

  properly refused to exercise its discretion. This argument has

  support. Indeed, several divisions of this court have concluded that

  crimes involving multiple victims were not based on identical

  evidence because each count involved evidence about a different

  victim. See People v. Harris, 2016 COA 159, ¶ 56 (“We conclude

  that the existence of multiple victims created factually distinct

  offenses.”); People v. Grant, 30 P.3d 667, 670 (Colo. App. 2000)

  (“[W]hen multiple convictions arise from crimes committed upon

  different victims, the evidence is not identical.”), aff’d, 48 P.3d 543

  (Colo. 2002); People v. Wafai, 713 P.2d 1354, 1357 (Colo. App.

  1985) (“[D]efendant’s multiple convictions arise from crimes

  committed upon different victims; therefore, the evidence is not

  identical, and § 18-1-408(3), C.R.S. (1978 Repl. Vol. 8) is

  inapplicable.”), aff’d, 750 P.2d 37 (Colo. 1988); People v. Cullen, 695

  P.2d 750, 752 (Colo. App. 1984) (“[W]here, as here, the multiple

                                     21
  convictions arise from crimes committed upon multiple victims, the

  evidence is not identical and therefore that statute [§ 18-1-408(3)] is

  inapplicable.”); see also Hahn, 813 P.2d at 784 (considering fact

  that there were “separate victims” as one consideration among

  several that established separate violent crimes). However, these

  cases are distinguishable on their facts.

¶ 36   For instance, Harris did not concern the crime of violence

  statute or its interplay with section 18-1-408. Harris contended

  that her multiple convictions for animal cruelty violated double

  jeopardy and should be merged into a single conviction because

  they were based on identical evidence. Harris, ¶ 37. The division

  rejected this argument, holding that the neglect of each animal,

  which occurred over a period of time, was a separate volitional act

  that constituted separate offenses for double jeopardy purposes. Id.

  at ¶ 53. It affirmed the separate convictions and the concurrent

  sentences imposed thereon. Id. at ¶¶ 56-57.

¶ 37   Similarly, the Grant case did not involve the crime of violence

  statute or its interplay with section 18-1-408. Rather, the trial

  court concluded that section 18-1-408(3) did not authorize

  consecutive sentences for multiple convictions arising from crimes

                                    22
  committed against different victims. Grant, 30 P.3d at 670. A

  division of this court disapproved that ruling, noting that the plain

  language of the statute gave the court discretion to impose

  consecutive sentences for multiple crimes involving different

  victims. Id.

¶ 38   True enough, Hahn, Wafai, and Cullen all concerned crimes of

  violence involving more than one victim; yet, all are distinguishable

  from this case. The Hahn division determined that the defendant’s

  swerving maneuvers directed at two different police cars during a

  single eluding formed distinct factual predicates for two assault

  convictions. 813 P.2d at 783. It concluded that because different

  evidence was required to establish guilt for each assault, the

  assaults were “separate” crimes under the crime of violence statute

  and required consecutive sentences. Id. at 784.

¶ 39   Wafai and Cullen both involved double murders in which the

  trial courts imposed discretionary consecutive life sentences for the

  two convictions. Citing to section 18-1-408(3), both divisions

  concluded that consecutive sentences could be imposed because

  different evidence would be needed to prove the deaths of the

  separate victims. Wafai, 713 P.2d at 1357; Cullen, 695 P.2d at 752.

                                    23
¶ 40   In contrast to these cases, the record here shows a single

  volitional act of fire-setting on the balcony of apartment 303. This

  single act destroyed multiple apartments and threatened the lives of

  multiple victims. Because the evidence required to prove all ten

  attempted murder counts is identical (the single act of fire-setting),

  the attempted murder convictions are not “separate crimes” under

  section 18-1.3-406(1)(a) and consecutive sentencing was not

  required. See Juhl, 172 P.3d at 902 (whether two charges are

  supported by identical evidence turns on whether they result from

  the same criminal act).

¶ 41   Finally, we note that adoption of the People’s argument would

  render the plain language of section 18-1-408(3) meaningless.

  Specifically, following their reasoning, two crimes of violence

  naming different victims and supported by identical evidence would

  simultaneously require mandatory consecutive sentencing under

  section 18-1.3-406(1)(a) and discretionary consecutive sentencing

  under section 18-1-408(3). In our view, to give effect to the plain

  language of both statutes, some evidence beyond the existence of

  multiple victims must exist to establish a “separate crime[]” under

  section 18-1.3-406(1)(a). Because that evidence did not exist here,

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  we conclude the trial court erred when it found that consecutive

  sentences were mandatory. Therefore, we vacate Espinoza’s

  sentence and remand for resentencing.

                           IV.   Conclusion

¶ 42   We affirm the judgments of conviction. We vacate the

  sentence and remand the case for resentencing consistent with this

  opinion.

       JUDGE WEBB and JUDGE BOORAS concur.




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