Slip opinions decided 2017 — Colorado Public Domain Citations

Workers' Compensation —Personal Jurisdiction—Specific Jurisdiction. In this case, the Supreme Court considered whether Colorado has jurisdiction to award benefits for out-of-state work-related injuries and impose a statutory penalty on an employer under CRS § 8-41-204 when the employer is not a citizen of Colorado and has no offices or operations in Colorado but hired a Colorado citizen within the state. The Court concluded that under the facts of this case, Colorado lacks personal jurisdiction over the employer and therefore the employer cannot be subject to the Workers' Compensation Act of Colorado, CRS §§ 8-40-101 to 8-47-209. Accordingly, the Court reversed the judgment of the Court of Appeals.

Criminal Trials—Continuances—Speedy Trial. Defendant sought review of the Court of Appeals' judgment affirming his conviction and sentence for sexual assault on a child by one in a position of trust. See People v. Nagi, 2014 COA 12, ___ P.3d ___. In addition to rejecting his challenge to the legality of his sentence, the Court of Appeals rejected defendant's assertion that he was denied his statutory right to a speedy trial, as prescribed by CRS § 18-1-405. Defendant had argued that the district court lacked sufficient grounds to justify ordering a competency evaluation, and that the period during which defendant was under observation or examination was therefore not properly excluded from the calculation of the time within which trial was statutorily required. With one member of the panel dissenting, the appellate court found that the district court did not abuse its discretion in ordering the evaluation, notwithstanding its reference to defendant's choice to proceed pro se as at least one of the reasons for questioning his competency, and that the evaluation period was therefore properly excluded and defendant's statutory speedy trial right was not violated.

Construction Defects—Statute of Repose—Statute of Limitations. In this case, the Supreme Court considered the parameters for timeliness of third-party claims in construction defect cases. The Court concluded that such claims are timely, irrespective of both the two-year statute of limitations in CRS § 13-80-102 and the six-year statute of repose in CRS § 13-80-104(1)(a), so long as they are brought at before the 90-day time frame outlined in CRS § 13-80-104(1)(b)(II). Accordingly, the Court made its rule to show cause absolute.

Tort—Respondeat Superior Liability—Direct Negligence. In this original proceeding under CAR 21, the Supreme Court reviewed trial court orders dismissing plaintiff's direct negligence claims against an employer that acknowledged vicarious liability for its employee's negligence, and denying plaintiff's motion for leave to amend her complaint to add exemplary damages against the employer and the employee. The Court adopted the rule articulated in McHaffie v. Bunch, 891 S.W.2d 19 822 (Mo. 1995), which held that an employer's admission of vicarious liability for an employee's negligence bars a plaintiff's direct negligence claims against the employer. The Court declined to adopt an exception to this rule where the plaintiff seeks exemplary damages against the employer. The Court concluded that the trial court did not err in dismissing plaintiff's direct negligence claims against the employer or in denying plaintiff's motion for leave to amend the complaint to add exemplary damages. The Court therefore affirmed the trial court orders and discharged the rule to show cause.

Plain Error Review—Double Jeopardy—Lesser Included Offenses. In these four cases, which raise the ultimate question of whether driving under the influence (DUI) is a lesser included offense of either vehicular assault—DUI or vehicular homicide—DUI, the Supreme Court addressed (1) whether a double jeopardy claim can be raised for the first time on direct appeal, and (2) what test courts should apply in evaluating whether one offense is a lesser included offense of another. The Court concluded that unpreserved double jeopardy claims can be raised for the first time on appeal and that appellate courts should ordinarily review such claims for plain error. In so holding, the Court rejected the People's contention that defendants waive their double jeopardy claims unless they raise them at trial through a Crim. P. 12(b)(2) challenge to defective charging documents. The Court further concluded that the applicable test for determining whether one offense is a lesser included offense of another is the strict elements test articulated in Schmuck v. United States, 489 U.S. 705, 716 (1989). Under this test, an offense is a lesser included offense of another offense if the elements of the lesser offense are a subset of the elements of the greater offense, such that the lesser offense contains only elements that are also included in the elements of the greater offense. Applying this test to the cases before it, the Court concluded that DUI is a lesser included offense of both vehicular assault—DUI and vehicular homicide—DUI, and thus, defendants' DUI convictions must merge into the greater offenses. The Court further concluded that in not merging such offenses, the trial courts plainly erred and that reversal of the multiplicitous convictions is therefore required. Accordingly, the Court affirmed the divisions' rulings in People v. Reyna-Abarca, No. 10CA637 (Colo.App. Aug. 1, 2013), and People v. Hill, No. 12CA168 (Colo.App. Aug. 8, 2013), that appellate courts review unpreserved double jeopardy claims for plain error, but reversed the portions of the judgments in those cases concluding that DUI is not a lesser included offense of vehicular assault—DUI, and remanded for further proceedings consistent with the opinion. Similarly, the Court reversed the portion of the judgment in People v. Medrano-Bustamante, 2013 COA 139, ___ P.3d ___, concluding that DUI is not a lesser included offense of vehicular assault—DUI and vehicular homicide—DUI, and remanded for further proceedings. The Court affirmed the judgments in those cases in all other respects, and affirmed in full the judgment in People v. Smoots, 2013 COA 152, ___ P.3d ___.

Plain Error Review—Double Jeopardy—Lesser Included Offenses. In this case, the Supreme Court reviewed two issues: (1) whether a double jeopardy claim can be raised for the first time on appeal, and (2) whether defendant William Costello Scott's convictions for both aggravated robbery-menaced with a deadly weapon ("aggravated robbery-menaced victim") and menacing amounted to plain error. In light of the Supreme Court's opinion in Reyna-Abarca v. People, 2017 CO 15, ___ P.3d ___, also decided on February 27, the Court concluded here, contrary to the division majority below, People v. Scott, No. 08CA2327 (Colo.App. Nov. 8, 2012), that unpreserved double jeopardy claims can be raised for the first time on appeal and that courts should ordinarily review such claims for plain error. The Court further concluded, however, that in the circumstances presented here, any error that might have occurred when the trial court entered judgment on Scott's convictions for both aggravated robbery-menaced victim and menacing was not obvious, and thus did not amount to plain error.

Plain Error Review—Double Jeopardy—Lesser Included Offenses. In this case, the Supreme Court addressed (1) whether a defendant may raise his or her unpreserved double jeopardy claim for the first time on appeal and, if so, what standard of review applies, and (2) whether driving under revocation (DUR) is a lesser included offense of aggravated driving after revocation prohibited (aggravated DARP). In Reyna-Abarca v. People, 2017 CO 15, ¶¶ 2–3, ___ P.3d ___, also decided on February 27, the Court (1) concluded that unpreserved double jeopardy claims can be raised for the first time on appeal and that appellate courts should ordinarily review such claims for plain error and (2) clarified the applicable test to be employed in determining whether one offense is a lesser included offense of another. Applying those rulings here, the Court concluded that the division in Zubiate v. People, 2013 COA 69, ___ P.3d ___, correctly (1) conducted plain error review of Zubiate's unpreserved double jeopardy claim, and (2) determined that DUR is not a lesser included offense of aggravated DARP, although the Court's analysis differs somewhat from that of the division. Accordingly, the Court affirmed the judgment of the Court of Appeals.

Plain Error Review—Double Jeopardy. These two cases present the issues of whether double jeopardy claims can be raised for the first time on direct appeal and, if so, what standard of review applies. The Supreme Court addressed the same issues in four cases also decided on February 27 (consolidated as Reyna-Abarca v. People, 2017 CO 15, ___ P.3d ___). There, the Court concluded that unpreserved double jeopardy claims can be raised for the first time on appeal and that appellate courts should ordinarily review such claims for plain error. Applying that ruling here, the Court concluded that the divisions in People v. Zadra, 2013 COA 140, ___ P.3d ___, and People v. Adams, No. 12CA339 (Colo.App. Mar. 12, 2015), correctly conducted plain error review of defendants' unpreserved double jeopardy claims and merged certain of defendants' convictions. Accordingly, the Court affirmed the judgments in both cases.

Probation—Sentencing. The Supreme Court considered whether a defendant has consented to a probationary sentence imposed in addition to a sentence of incarceration when he or she requested probation in lieu of incarceration. The Court held that a trial court cannot impose a sentence of probation without the defendant's consent. Accordingly, the Supreme Court held that in this case the trial court exceeded the scope of Veith's consent when it imposed a 10-year prison sentence in addition to the probationary sentence. Accordingly, the judgment of the Court of Appeals was reversed.

Criminal Trials—Speedy Trial—Continuances. The Supreme Court reviewed the Court of Appeals' construction of Colorado's speedy trial statute, CRS § 18-1-405. The Court rejected Mosley's contention that the exclusions of time listed in subsection (6) of the statute apply only to the speedy trial calculation for an initial trial, and not for a new trial following reversal of a conviction on appeal under subsection (2). The Court concluded that subsection (1) of the statute establishes the basic right to a speedy trial, and that subsection (2) clarifies that right by identifying the trial court's receipt of the mandate as the event that triggers the six-month speedy trial period for a new trial following reversal of a conviction on appeal. Because a defendant's speedy trial right—whether in an initial trial or on retrial—derives from subsection (1), the exclusions of time listed in subsection (6) apply to both an initial trial and a new trial following reversal of a conviction on appeal. The Court further rejected Mosley's contention that the trial court erred in granting a continuance and extending the speedy trial deadline in this case. The Court therefore affirmed the judgment of the Court of Appeals.

Implied Warranty of Suitability—Privity of Contract—Implied Warranties. The Supreme Court considered whether privity of contract is necessary for a home buyer to assert a claim for breach of the implied warranty of suitability against a developer. The Court concluded that because breach of the implied warranty of suitability is a contract claim, privity of contract is required in such a case. Here, the home buyer was not in privity of contract with the developer and thus cannot pursue a claim against the developer for breach of the implied warranty of suitability. Accordingly, the Court of Appeals' judgment was reversed and the case was remanded for further proceedings.

Searches and Seizures—Warrantless Blood Draw— Consent to Search. In this interlocutory appeal, the Supreme Court considered whether a warrantless blood draw conducted on an unconscious driver pursuant to Colorado's Expressed Consent Statute, CRS § 42-4-1301.1, violates the Fourth Amendment's prohibition on unreasonable searches. The Court explained that by driving in Colorado, the driver consented to the terms of the statute, including its requirement that "[a]ny person who is dead or unconscious shall be tested to determine the alcohol or drug content of the person's blood." The Court concluded that the driver's prior statutory consent satisfied the consent exception to the warrant requirement under the Fourth Amendment therefore, the blood draw conducted in this case was constitutional. Consequently, the Court reversed the trial court's order suppressing the blood-draw evidence.

Searches and Seizures—Warrantless Blood Draw—Consent to Search. Colorado's Expressed Consent Statute, CRS § 42-4-1301.1, provides that any motorist who drives on the roads of the state has consented to take a blood or breath test when requested to do so by a law enforcement officer with probable cause to suspect the motorist of driving under the influence. In this interlocutory appeal, the Court reviewed the trial court's ruling that an advisement accurately informing defendant of the statute amounted to coercion that rendered his consent to a blood test involuntary and required suppression of the test result. The Court explained that by driving in Colorado, defendant consented to the terms of the statute, including its requirement that he submit to a blood draw under the circumstances present in this case. The Court concluded that defendant's prior statutory consent satisfied the consent exception to the warrant requirement under the Fourth Amendment therefore, the blood test conducted in this case was constitutional. Consequently, the Court reversed the trial court's suppression of the test result.

Searches and Seizures—Refusal to Submit to 12 Blood-Alcohol Testing—Admission of Refusal Evidence.

Constitutional Law—Personal Jurisdiction—General Jurisdiction—Corporations and Business Organizations. The Supreme Court issued a rule to show cause to review the trial court's conclusion that defendant Borrego Solar Systems, Inc. (Borrego) is subject to general personal jurisdiction in Colorado. Because the trial court did not assess whether Borrego was essentially at home in Colorado, the Court concluded it did not fully apply the test announced in Magill v. Ford Motor Co., 2016 CO 57, 379 P.3d 1033, and therefore erred in exercising general personal jurisdiction over Borrego. Applying the complete test, the Court further concluded that Borrego is not subject to general jurisdiction in this state. The rule to show cause was made absolute and the case was remanded for further proceedings.

Criminal Law—Jury Prejudice—Jury Polling— Prejudicial News Reports. The Supreme Court determined whether a trial court abused its discretion by refusing to poll the jury about whether jurors had seen a prejudicial news report that had aired the night before and was available online. Because the trial court gave repeated, specific admonitions to jurors to avoid "newscasts" and "newspaper sites" (including on the day of the newscast), and these were the only places on which the prejudicial report was available, the Court held that the trial court did not abuse its discretion when it refused to poll jurors. Therefore, the Supreme Court reversed the Court of Appeals' judgment and affirmed defendant's conviction.

Criminal Law—Jury Prejudice—Jury Polling—Prejudicial News Reports.

Innovation Schools Act—Innovation Plans—Public Schools. The Supreme Court considered whether the Innovation Schools Act of 2008, CRS §§ 22-32.5-101 to -111, precludes a local school board from approving an innovation plan submitted by a "new" innovation school, that is, a school that has not previously opened as a non-innovation school and has yet to hire teachers. The Court concluded that the Innovation Schools Act does not preclude approval of innovation plans from such "new" innovation schools. Accordingly, the judgment of the Court of Appeals was reversed.

Criminal Law—Evidence Suppression.

Statutory Construction—Local Tax Ordinances. The City and County of Denver (Denver) petitioned for review of the Court of Appeals' opinion reversing the judgment of the district court and remanding with directions to vacate the subject tax assessments against Expedia, Inc. and the other respondent online travel companies (OTCs). (See Expedia, Inc. v. City and County of Denver, 2014 COA 87.) The district court had largely upheld a Denver hearing officer's denial of protests by Expedia and the other OTCs to Denver's claim for unpaid taxes, interest, and penalties, apparently due according to Denver's ordinance imposing a lodger's tax. Unlike the hearing officer and district court, the Court of Appeals concluded that Denver's lodger's tax article was at least ambiguous with regard to both the purchase price paid or charged for lodging, upon which the tax is to be levied, and the status of the OTCs as vendors, upon which the ordinance imposes the responsibility to collect the tax and remit it to the city and the intermediate appellate court considered itself obligated to resolve all ambiguities in the lodger's tax article, being a tax statute, in favor of the OTCs. The Supreme Court reversed the judgment of the Court of Appeals. The Court held that Denver's lodger's tax article imposes a duty on the OTCs to collect and remit the prescribed tax on the purchase price of any lodging they sell, to include not only the amount they have contracted with the hotel to charge and return but also the amount of their markup.

Vagueness—Medical Marijuana Licensing. The Supreme Court reviewed the district court's order declaring a provision of the City of Northglenn's (City) medical marijuana licensing ordinance unconstitutionally vague and finding that the City's denial of a medical marijuana center license to an applicant in reliance on that provision was arbitrary and capricious. The Court held that Northglenn City Code § 18-14-7(h), which allows the local licensing authority to consider the "number, type, and availability" of existing medical marijuana facilities near the proposed facility before approving or denying an application for a local license, is not unconstitutionally vague. The phrase "number, type, and availability" provides sufficient notice to applicants and reasonably constrains the exercise of the City's discretion. The Court further held that the City's decision to deny the license application in this case was supported by substantial evidence in the record, and therefore was not arbitrary and capricious.

Juries and Jury Selection—Peremptory Challenges—Batson Challenges. The Supreme Court considered whether a trial court must make express findings about the credibility of a party's reasons for exercising a peremptory challenge when the other party has challenged that strike under Batson v. Kentucky, 476 U.S. 79 (1986). The Court also considered when two or more jurors are similarly situated for comparison under Batson such that the dismissal of one but not the other indicates impermissible discrimination. The Court held that although express credibility findings significantly aid appellate review, they are not strictly necessary if the trial court's ultimate Batson ruling is otherwise reviewable on the record. The Court also held that appellate courts may rely on comparative juror analyses in reviewing Batson rulings, but only where the record facilitates comparison of the jurors in all respects that reportedly motivated the peremptory strike. The Court concluded that the record here supports the trial court's Batson ruling and that the trial court did not clearly err in denying defendant's Batson challenges. The Court reversed the judgment of the Court of Appeals in its entirety.

Testimonial Evidence—Electronic Exhibits—Jury Deliberations—Abuse of Discretion. This case concerns the scope of a trial court's discretion to permit, deny, or restrict the jury's access during deliberations to a DVD containing the recorded statement of a child sexual assault victim, which DVD was admitted as an exhibit in a criminal trial. The Supreme Court concluded that the trial court did not employ the requisite caution to ensure that the DVD would not be used in such a manner as to create a likelihood that the jury would accord it undue weight or emphasis. Specifically, the trial court relied on the Court of Appeals' analysis in People v. DeBella, 219 P.3d 390, 396–97 (Colo.App. 2009), rev'd, 233 P.3d 664 (Colo. 2010). By relying on an analysis that the Supreme Court later rejected, the trial court misapplied the law and abused its discretion. Moreover, because the nature of the DVD and its importance to the case's resolution left the Court with grave doubts as to the effect that unfettered access had on the verdict and the fairness of the proceedings, the Court could not deem the error harmless. The Court of Appeals' judgment was affirmed.

Testimonial Evidence—Electronic Exhibits—Jury Deliberations—Plain Error. The Supreme Court reviewed for plain error a trial court's decision to allow the jury unfettered access, during its deliberations, to the out-of-court statements of three sexual assault victims. These statements were memorialized in three DVDs and three transcripts thereof, all of which had been admitted as exhibits in petitioner's criminal trial. The Court concluded that even if the trial court erred in allowing the jury unfettered access to the victims' statements, on the facts of this case, any such error did not so undermine the fundamental fairness of the trial itself as to cast serious doubt on the reliability of petitioner's convictions, and thus was not plain. Accordingly, the Court affirmed the judgment of the Court of Appeals and remanded the case for further proceedings consistent with the opinion

Criminal Law—Expert Testimony—Jury Access to Exhibits. This case required the Supreme Court to address two issues it recently addressed in two other cases, People v. Jefferson, 2017 CO 35, and Venalonzo v. People, 2017 CO 9. Specifically, the Court resolved (1) whether a trial court commits plain error when it fails to limit, sua sponte, a jury's access to recorded statements during jury deliberations, and (2) whether a trial court abuses its discretion when it allows a police officer to testify as a lay witness about the concept of grooming in the context of sexual predation. The Court held that a trial court does not commit plain error when it does not limit a jury's access to recorded statements without an objection, and that a trial court abuses its discretion when it allows a witness to testify about grooming without qualifying that witness as an expert. The Court therefore reversed defendant's convictions and remanded the case for a new trial.

Exemption from Liability—Exculpatory Contracts— Corporation as Distinct Entity—Corporate Actions through Agents—Vicarious Liability.

Criminal Law—Evidence Suppression. This interlocutory appeal required the Supreme Court to determine whether a defendant's confession to an Army investigator during basic training was the product of coercion. The Court held that, where a defendant knowingly and intelligently waived his Miranda rights, knew he was free to leave an interview, and confessed to committing a crime during the course of a conversational, friendly interview devoid of coercive promises or threats, he gave his statements voluntarily. The Court therefore reversed the trial court's suppression order and remanded the case for proceedings consistent with this opinion.

Life without Parole—Juveniles—Eighth Amendment—Colorado Rules of Criminal Procedure 35(b) and 35(c). The Supreme Court considered whether Graham v. Florida, 560 U.S. 48 (2010), and Miller v. Alabama, 132 S. Ct. 2455 (2012), apply to aggregate term-of-years sentences imposed on juvenile defendants convicted of multiple offenses. Graham holds that the Eighth Amendment to the U.S. Constitution prohibits the sentence of life without parole for a juvenile non-homicide offender. Miller bars mandatory life without parole for any juvenile offender. Because life without parole is a specific sentence imposed for a single offense, the Court held that Graham and Miller do not apply to aggregate term-of-years sentences imposed for multiple offenses. The Court thus held that Graham and Miller do not apply to Lucero's aggregate term-of-years sentence. The Court also considered whether the Court of Appeals erred by treating Lucero's Rule 35(b) motion for sentence reduction as a Rule 35(c) motion challenging the constitutionality of his sentence. Because a court may properly characterize a mischaracterized issue, and Lucero argued that his sentence must be reduced under Graham to meet constitutional standards, the Could held that the Court of Appeals did not err. Accordingly, the Court affirmed the Court of Appeals' judgment.

Life without Parole—Juveniles—Eighth Amendment. The Supreme Court considered whether Graham v. Florida, 560 U.S. 48 (2010), and Miller v. Alabama, 132 S. Ct. 2455 (2012), apply to aggregate term-of-years sentences imposed on juvenile defendants convicted of multiple offenses. For reasons discussed at length in the lead companion case, Lucero v. People, 2017 CO 49, __ P.3d __, announced the same day, the Court held that Graham and Miller do not apply to aggregate term-of-years sentences imposed for multiple offenses. The Court therefore held that Graham and Miller do not apply to Rainer's aggregate term-of-years sentence. Accordingly, the Court of Appeals' judgment was reversed.

Life without parole—Juveniles—Eighth Amendment. The Supreme Court considered whether Graham v. Florida, 560 U.S. 48 (2010), and Miller v. Alabama, 132 S. Ct. 2455 (2012), apply to aggregate term-of-years sentences imposed on juvenile defendants convicted of multiple offenses. For reasons discussed at length in the lead companion case, Lucero v. People, 2017 CO 49, __ P.3d __, announced the same day, the Court held that Graham and Miller do not apply to aggregate term-of-years sentences imposed for multiple offenses. The Court therefore held that Graham and Miller do not apply to Armstrong's aggregate term-of-years sentence. Accordingly, the Court of Appeals' judgment was affirmed.

Life without parole—Juveniles—Eighth Amendment. The Supreme Court considered whether Graham v. Florida, 560 U.S. 48 (2010), and Miller v. Alabama, 132 S. Ct. 2455 (2012), apply to aggregate term-of-years sentences imposed on juvenile defendants convicted of multiple offenses. For reasons discussed at length in the lead companion case, Lucero v. People, 2017 CO 49, __ P.3d __, announced the same day, the Court held that Graham and Miller do not apply to aggregate term-of-years sentences imposed for multiple offenses. The Court therefore held that Graham and Miller do not apply to Estrada-Huerta's aggregate term-of-years sentence. Accordingly, the Court of Appeals' judgment was affirmed.

Issue Preclusion—Attorney Disqualification—Colo. RPC 1.9. In this original proceeding under C.A.R. 21, the Supreme Court reviewed a district court's order applying the doctrine of issue preclusion to deny defendants' motion to disqualify one of the plaintiff's attorneys under Colo. RPC 1.9 and to disqualify her law firm by imputation of the attorney's conflict under Colo. RPC 1.10. The disqualification inquiry under Colo. RPC 1.9(a) asks whether an attorney's prior representation and current representation are "substantially related." This inquiry under Colo. RPC 1.9(a) is specific to the particular matter for which disqualification is sought. The supreme court therefore concludes that a motion to disqualify under Colo. RPC 1.9(a) will rarely, if ever, raise an "identical" issue to a disqualification motion in another case for purposes of issue preclusion. Here, the Court held that the trial court abused its discretion by relying on the doctrine of issue preclusion to deny the disqualification motion instead of conducting the requisite analysis under Colo. RPC 1.9(a). The Court therefore made the rule to show cause absolute, vacated the trial court's order, and remanded the case for the trial court to address the merits of the motion to disqualify under Colo. RPC 1.9(a).

Governmental Immunity—Waiver of Governmental Immunity—Dangerous Condition. In this case, the Supreme Court considered the Colorado Governmental Immunity Act's "recreation-area waiver," which deprives a public entity of immunity in an action for injuries resulting from a dangerous condition of a public facility located in a recreation area. Specifically, the Court examined the meaning of "dangerous condition" under the recreation-area waiver. The Court held that a non-negligently constructed and maintained piece of playground equipment cannot be a "dangerous condition" under the waiver. Given this holding, the facts respondents alleged cannot show that a "dangerous condition" existed in this case. The Court therefore concluded that the recreation-area waiver did not apply and petitioner retained its immunity from suit. The Court reversed the judgment of the Court of Appeals and remanded to that court to reinstate the trial court's order.

Workers' Compensation—Mutual Mistake of Material Fact—Colorado Workers' Compensation Act. In this case, the Supreme Court considered whether a provision of the mandatory form settlement document promulgated by the Director of the Division of Workers' Compensation waives an injured employee's statutory right under CRS § 8-43-204(1) to reopen a settlement based on a mutual mistake of material fact. The Court concluded that it does not because provisions of the form document must yield to statutory rights. Accordingly, the Court reversed the judgment of the Court of Appeals.

Single Subject—Fiscal Impact Statement Abstract—Standard of Review. The Supreme Court held that Initiative 4 contains a single subject: limiting housing growth in Colorado. The Court also considered, for the first time, its authority to review an abstract prepared pursuant to CRS § 1-40-105.5 and the proper standard to apply when reviewing such an abstract. The Court held that CRS § 1-40-107 grants the Court reviewing authority, and the proper standard of review is the same standard the Court applies to the single-subject and clear-title requirements—that is, the Court draws all legitimate presumptions in favor of the propriety of the Title Board's decision and will only overturn the Title Board's decision in a clear case. Under that standard, the Court upheld the Title Board's approval of the abstract at issue in this case. Therefore, the Court affirmed the actions of the Title Board.

The People sought review of the Court of Appeals' judgment reversing Rock's convictions for second-degree burglary and theft. See People v. Rock, No. 11CA1936 (Colo.App. July 3, 2014). The trial court denied Rock's request for an additional, lesser included offense instruction on second-degree criminal trespass, on the ground that second-degree criminal trespass is not an included offense of second-degree burglary. The Court of Appeals reversed, concluding that in denying Rock's request, the trial court erred and that the error was not harmless with regard to either of Rock's convictions. The Supreme Court reversed the judgment of the Court of Appeals because second-degree criminal trespass is not a lesser included offense of second-degree burglary under the strict elements test, as clarified in Reyna-Abarca v. People, 2017 CO 15, 390 23 P.3d 816.

Criminal Law—Withdrawal of Guilty Plea—Crim.P. 32(d)—Guilty Pleas—Ineffective Assistance of Counsel—Deferred Judment. Edgar Zafiro-Guillen pleaded guilty to possession of one gram or less of a schedule II controlled substance in exchange for a two-year deferred judgment. In 2009, upon successful completion of the terms of the deferred judgment, the district court withdrew Zafiro-Guillen's guilty plea and dismissed the case with prejudice. In 2013, Zafiro-Guillen filed a motion to withdraw his guilty plea pursuant to Crim.P. 32(d). The district court denied the motion, holding it lacked jurisdiction. The Court of Appeals affirmed. For the reasons discussed in the lead companion case, People v. Corrales-Castro, 2017 CO 60, ___ P.3d ___, announced the same day, the Supreme Court held that the plain terms of Rule 32(d) require a plea to exist for it to be withdrawn. Therefore, Crim.P. 32(d) does not authorize withdrawal of Zafiro-Guillen's plea. Accordingly, the Court affirmed the Court of Appeals' judgment.

Criminal Law—Withdrawal of Guilty Plea—Crim.P. 32(d)—Guilty Pleas—Ineffective Assistance of Counsel—Deferred Judgment. Eloisa Roman pleaded guilty to criminal impersonation and received a two-year deferred judgment. She successfully completed her deferred judgment, and her plea was withdrawn and the case was dismissed. In 2013, she filed a motion under Crim.P. 32(d) seeking to withdraw her plea. The trial court denied her motion, and the Court of Appeals reversed, holding that Rule 32(d) authorized the district court to withdraw Roman's previously withdrawn plea. For the reasons discussed in the lead companion case, People v. Corrales-Castro, 2017 CO 60, ___ P.3d ___, announced the same day, the Supreme Court held that the plain terms of Rule 32(d) require a plea to exist for it to be withdrawn. Therefore, Crim.P. 32(d) does not authorize withdrawal of Roman's plea. Accordingly, the Court reversed the Court of Appeals' judgment.

Criminal Law—Withdrawal of Guilty Plea—Crim.P. 32(d)—Guilty Pleas—Ineffective Assistance of Counsel—Deferred Judgment. Jesus Flores-Heredia pleaded guilty to inducement and conspiracy to sell and possess with intent to sell a schedule II controlled substance, and he received a one-year deferred judgment in 1990. Although he successfully completed the deferred judgment in 1991, no court ever ordered his plea withdrawn or the action against him dismissed pursuant to CRS § 18-1.3-102(2), which provides that, upon "full compliance with [the conditions of a deferred judgment]" the guilty plea previously entered "shall be withdrawn and the charge upon which the judgment and sentence of the court was deferred shall be dismissed with prejudice." In 2014, Flores-Heredia filed a motion to withdraw his plea pursuant to Crim.P. 32(d). The district court concluded that because no order had been entered withdrawing Flores-Heredia's plea and dismissing the charge under CRS § 18-1.3-102(2), it would enter such an order. The court then denied the Rule 32(d) motion, concluding that it could not withdraw the plea because the plea had already been withdrawn. The Supreme Court held that CRS § 18-1.3-102(2) requires that a plea be deemed withdrawn and the charge dismissed once the deferred judgment is successfully completed, and when an order to this effect is not entered, it occurs by operation of law as mandated by CRS § 18-1.3-102(2). Therefore, Flores-Heredia's plea was withdrawn by operation of law when he successfully completed the deferred judgment in 1991. Further, for the reasons discussed in the lead companion case, People v. Corrales-Castro, 2017 CO 60, ___ P.3d ___, announced the same day, the Supreme Court held that the plain terms of Rule 32(d) require a plea to exist for it to be withdrawn. Therefore, Crim. P. 32(d) does not authorize withdrawal of Flores-Heredia's plea. Accordingly, the Court affirmed the district court's judgment.

Fourth Amendment—Consensual Encounters. In this case, the Supreme Court considered whether defendant's encounter with police, during which he confessed to possessing a controlled substance, was consensual or whether it constituted an impermissible seizure under the Fourth Amendment. The Court concluded that under the totality of the circumstances, the encounter was consensual. Accordingly, the Court reversed the trial court's order suppressing evidence from the encounter, and remanded the case for further proceedings consistent with this opinion.

Criminal Law—Sentencing and Punishment—Costs Taxable Against Defendant. In this consolidated opinion, the Supreme Court addressed whether sexual offenders must shoulder the cost of their victims' forensic medical examinations as criminal restitution. By statute, such restitution may include "extraordinary direct public . . . investigative costs." The Court therefore considered whether the cost of a sexual assault nurse examiner (SANE) examination is "extraordinary" for purposes of the statute. As both a medical and investigative response to a sexual offense, these examinations necessarily perform dual roles. The Court concluded that the hybrid nature of these exams renders them, and their resulting costs, extraordinary. It further concluded that the state may therefore recover those costs as restitution.

Electronic Exhibits—Crime Scene Videos—Statements by the Defendant—Jury Deliberations. This case required the Supreme Court to decide whether it was reversible error for a trial court in a criminal case to provide the deliberating jury with "unfettered and unsupervised access" to a crime scene video and a video of a police interview of the defendant. A division of the Court of Appeals concluded that the trial court did not err in either regard. In reaching this conclusion, the division relied on DeBella v. People, 233 P.3d 664, 665–66 (Colo. 2010), in which the Court considered the propriety of a trial court's order allowing the jury unfettered access to the videotapes of a child sexual assault victim's out-of-court interviews. Although the Supreme Court agreed that the trial court retains discretion regarding juror access to the videos at issue, the Court disagreed with the division that DeBella provides the appropriate framework for resolving this case. The Court nevertheless concluded that the division reached the correct result, namely, that the trial court did not abuse its discretion in allowing the jury unfettered access to those videos during deliberations. In arriving at this conclusion, the Court observed that the non-testimonial crime scene video did not present the same risk of undue emphasis as do videos documenting witnesses' out-of-court, testimonial statements (like the videotapes at issue in DeBella). The Court likewise observed, consistent with well-established precedent, that a defendant's confession is not subject to the same limitations during deliberations as the out-of-court statements of other witnesses. Accordingly, the Court affirmed the judgment of the Court of Appeals and remanded the case for further proceedings consistent with this opinion.

The People sought review of the Court of Appeals' judgment reversing Roman's conviction for first degree assault. The trial court instructed the jury on the lesser included offense of second degree assault committed by intentionally causing bodily injury with a deadly weapon, but it denied Roman's request for an additional lesser-included-offense instruction on second degree assault committed by recklessly causing serious bodily injury with a deadly weapon. The Court of Appeals reversed, concluding both that the trial court erred in denying Roman's requested additional lesser-included-offense instruction and that the error was not harmless. The Supreme Court reversed the judgment of the Court of Appeals. In light of the evidence presented at trial and the instructions actually provided to the jury, there was no reasonable possibility that the failure to instruct on reckless second degree assault contributed to defendant's conviction of first degree assault. Any error in that regard would therefore have been harmless.

In light of the U.S. Supreme Court's holding in Davis v. Washington, 547 U.S. 813 (2006), the Colorado Supreme Court held that nontestimonial hearsay statements do not implicate a defendant's state constitutional right to confrontation, overruling Compan v. People, 121 P.3d 876 (Colo. 2005), which held otherwise. Because the hearsay statements at issue in this case were nontestimonial, they did not implicate Colorado's Confrontation Clause, and the Court of Appeals did not err in concluding that defendant's confrontation right was not violated. The Court further held that the third requirement for the admission of inculpatory hearsay statements against interest, announced in People v. Newton, 966 P.2d 563, 576 (Colo. 1998) (requiring corroborating circumstances to demonstrate the statement's trustworthiness), is not constitutionally required for nontestimonial statements against interest. To admit a third party's nontestimonial statements against interest under the version of CRE 804(b)(3) that existed at the time of defendant's 2008 trial, only two conditions needed to be satisfied: (1) the witness must have been unavailable, and (2) the statement must have tended to subject the declarant to criminal liability. The Court concluded that the third party's nontestimonial statements against interest satisfied these two requirements, and the trial court did not abuse its discretion in admitting these statements as a statement against interest under CRE 804(b)(3), as that rule existed at the time of defendant's trial. Finally, the Court held that the trial court did not abuse its discretion in admitting testimony about defendant's response to the death of her second child because the testimony was relevant and not unduly prejudicial nor did the trial court plainly err in admitting testimony about the cause of the second child's death because the brief, isolated statements did not so undermine the trial's fairness as to cast serious doubt on the reliability of defendant's conviction. Accordingly, the Court of Appeals' judgment was affirmed.

The Supreme Court reviewed the Court of Appeals' conclusion that the Montezuma County Assessor had statutory authority to retroactively assess property taxes on oil and gas leaseholds operated by Kinder Morgan, after the assessor determined that Kinder Morgan had underreported the wellhead selling price of CO2 gas produced at the leaseholds. The Court considered whether this assessment was authorized under the statute permitting retroactive property tax assessments when, pursuant to CRS § 39-5-125(1), "taxable property has been omitted from the assessment roll." Given Colorado's self-reporting scheme for property taxation of oil and gas leaseholds and the legislature's amendments to that scheme—which describe the "underreporting of the selling price or the quantity of oil and gas sold [from a leasehold]" as a form of omitted property, CRS §§ 29-1-301(1) and 39-10-107(1)—the Court concluded that the assessor had statutory authority to issue the assessment in this case. The Court further concluded that the Board of Assessment Appeals did not err in determining that Kinder Morgan had underreported the wellhead selling price of CO2. The Court therefore affirmed the judgment of the Court of Appeals.

The Supreme Court concluded that the designated groundwater court properly concluded that petitioners failed to satisfy their statutory burden in seeking to de-designate a portion of a designated groundwater basin, and therefore, properly denied the petition to de-designate a portion of the basin. The Court also concluded that the designated groundwater court properly awarded respondents a portion of their litigation costs as prevailing parties under CRCP 54(d). The Court affirmed the designated groundwater court in both cases.

The Supreme Court held that the prohibition on processing or manufacturing marijuana or marijuana concentrate under CRS § 18-18-406(2)(a)(I) is not unconstitutional as applied to Austin Lente, who used butane to extract hash oil from marijuana. Although "processing . . . marijuana plants" is a protected personal activity under Colorado's Amendment 64, "manufacturing . . . marijuana" is protected only as a facility-operation activity that requires a license. At the time Amendment 64 was approved, Colorado law established that extracting hash oil was manufacturing, not processing, and the Supreme Court assumes Amendment 64 adopted that settled meaning. Because Lente was unlicensed, he could not manufacture hash oil under cover of the constitution. Accordingly, the Court reversed the district court's order that ruled the statute is unconstitutional as applied to Lente.

In this appeal, the Supreme Court considered two issues from the district court's review of a decision of the Colorado Public Utilities Commission (the Commission). Both issues pertain to a billing error that led Public Service Company of Colorado (Public Service) to undercharge Carestream Health, Inc. (Carestream) for gas it received over the course of a three-year period. The first issue is whether the Commission properly interpreted Public Service's tariff, specifically the requirement to "exercise all reasonable means" to prevent billing errors. The Court concluded that determining what means are "reasonable," as that term is used in the tariff, necessarily requires considering what errors are foreseeable. The Court therefore held that the Commission properly interpreted the tariff and acted pursuant to its authority. The second issue is whether Carestream had standing to challenge Public Service's use of its tariff to recover a portion of the undercharge from its general customer base. Because Carestream suffered no injury from that action, it lacks standing to challenge it. The Court accordingly affirmed the district court's judgment.

In this case, the Supreme Court reviewed the district court's order affirming petitioner's county court conviction for harassment. Petitioner asserted that pursuant to People v. Pickering, 276 P.3d 553 (Colo. 2011), self-defense is an affirmative defense to all crimes requiring intent, knowledge, or willfulness. She thus contended that (1) she was entitled to a self-defense affirmative defense instruction to the specific intent crime of harassment, and (2) the county court's refusal to give such an instruction constituted reversible error. Because Pickering does not establish the broad, bright-line rule that petitioner asserts and thus does not require a trial court to give a self-defense affirmative defense instruction in every case requiring intent, knowledge, or willfulness, the Court affirmed the district court's judgment.

The Department of Corrections petitioned for review of the Court of Appeals' judgment reversing an order of the district court that denied Fetzer's petition pursuant to CRCP 106(a)(2). Fetzer's petition sought an order compelling the recalculation of his parole eligibility date, asserting that the Department's "governing sentence" method, which calculated his parole eligibility date solely on the basis of the longest of his concurrent sentences, violated the statutory requirement that his multiple sentences be treated as one continuous sentence. The Court of Appeals reversed and remanded for recalculation, reasoning both that, contrary to the Department's understanding, the statutory continuous sentence requirement applies to concurrent as well as consecutive sentences and that the Department's "governing sentence" method of calculation could not apply to Fetzer's sentences because they were all subject to the same statutory parole provisions.

The Supreme Court held that where the Division of Unemployment Insurance determines a claimant was mentally unable to perform assigned work under CRS § 8-73-108(4)(j) of the Colorado Employment Security Act, CRS §§ 8-70-101 to 8-82-105, neither the text of CRS § 8-73-108(4)(j) nor related case law contemplates further inquiry into the cause of the claimant's mental condition, and such an inquiry is beyond the scope of the simplified administrative proceedings to determine the claimant's eligibility for benefits. Here, the Court concluded that the Division's hearing officer erred in determining that claimant committed a volitional act to cause her mental incapacity and thus was at fault for her separation from employment and was disqualified from receiving unemployment benefits. The Court of Appeals' judgment was affirmed.

This case required the Supreme Court to determine whether respondent, a dog owner, owed a duty of care to petitioner, a child who became frightened when respondent's dogs rushed at respondent's front yard fence and who, although not touched by the fenced-in dogs, ran into the street and was struck and injured by a passing van. Because petitioner's negligence claim against respondent was predicated on alleged nonfeasance, or failure to act, and because the case is distinguishable from cases in which a dangerous or vicious animal attacks and directly injures someone, petitioner was required to plead a special relationship between himself and respondent to establish the duty of care necessary to support his negligence claim. Petitioner did not, however, plead such a special relationship. Accordingly, the Court concluded that, as a matter of law, respondent owed no duty of care to petitioner and thus the district court properly dismissed petitioner's negligence claim against respondent. The Court of Appeals' judgment was affirmed.

Fourth Amendment—Exceptions to Warrant Requirement—Consent Searches—Third-Party Consent. The Supreme Court reviewed the Court of Appeals' opinion reversing Stock's convictions and remanding for a new trial. The Court of Appeals concluded that the trial court erred in denying Stock's motion to suppress statements she made to a police officer inside the hotel room where Stock lived. The police officer had entered the hotel room after Stock's father—who did not live in the hotel room—opened the door in response to the officer's knock. The Court of Appeals concluded that suppression was required because Stock's father lacked authority to consent to the officer's entry. The Supreme Court concluded that the trial court properly denied the motion to suppress because, on the facts of this case, the officer's limited entry into Stock's hotel room, in her immediate presence and without her objection, did not violate Stock's Fourth Amendment right to be free from unreasonable searches. The Court therefore reversed the judgment of the Court of Appeals and remanded the case for further proceedings consistent with this opinion.

Campaign Finance—Fair Campaign Practices Act—Campaign Contributions. The Supreme Court reviewed the Court of Appeals' conclusion that a school district did not make a prohibited campaign contribution in a school board election campaign under CRS § 1-45-117(1)(a) of Colorado's Fair Campaign Practices Act and article XXVIII, § 2(5)(a)(IV) of the Colorado Constitution. Under § 2(5)(a)(IV), a "contribution" requires that (1) something of value (2) be given to a candidate, directly or indirectly, (3) for the purpose of promoting the candidate's nomination, retention, recall, or election. Here, the school district commissioned and paid for a report supportive of the district's reform agenda using public funds. However, because the school district did not give something, directly or indirectly, to any candidate when it publicly disseminated an email containing a link to the report, the Court concluded that the school district did not make a prohibited contribution under these Colorado campaign finance provisions. The Court therefore affirmed the judgment of the Court of Appeals.

In this case, the Supreme Court considered whether a liquidated damages clause in a contract is invalid because the contract gives the non-breaching party the option to choose between liquidated damages and actual damages. The Court concluded that such an option does not invalidate the clause. Instead, parties are free to contract for a damages provision that allows a non-breaching party to elect between liquidated damages and actual damages. However, such an option must be exclusive, meaning a party who elects to pursue one of the available remedies may not pursue the alternative remedy set forth in the contract. Therefore, under the facts of this case, the liquidated damages clause in the contracts at issue is enforceable. Accordingly, the Court affirmed the judgment of the Court of Appeals.

The People sought review of the Court of Appeals' judgment reversing Rock's convictions for second degree burglary and theft. The trial court denied Rock's request for an additional, lesser included offense instruction on second degree criminal trespass on the ground that second degree criminal trespass is not an included offense of second degree burglary. The Supreme Court affirmed the Court of Appeals' reversal. The Court held that (1) the district court erred in denying Rock her requested instruction on second degree criminal trespass on the ground that it was not a lesser included offense of the charged offense of second degree burglary, and (2) erroneously denying Rock's requested instruction was not harmless with regard to either of her convictions.

The Supreme Court held that claims brought under CRS § 1-1-113 are limited to those alleging a breach or neglect of duty or other wrongful act under the Colorado Election Code. The language of CRS § 1-1-113 limits claims that may be brought to those alleging a breach or neglect of duty or other wrongful act under "this code," meaning the Colorado Election Code. The Court emphasized that Colorado courts remain entirely open for adjudication of 42 USC § 1983 (2012) claims, including on an expedited basis if a preliminary injunction is sought, and therefore CRS § 1-1-113 does not run afoul of the Supremacy Clause. To the extent that Brown v. Davidson, 192 P.3d 415 (Colo.App. 2006), holds to the contrary, it is overruled.

As held in Frazier v. Willaims, 2017 CO 85, ___ P.3d ___, a 42 USC § 1983 (2012) claim may not be brought in a proceeding under CRS § 1-1-113.

The Supreme Court reviewed the Court of Appeals' opinion reversing defendant's convictions for felony menacing on the ground that defendant was entitled to a jury instruction on the lesser non-included offense of disorderly conduct with a deadly weapon. Under the Supreme Court's case law, a defendant is entitled to a jury instruction on a lesser non-included offense where there exists a rational basis in the evidence to simultaneously acquit the defendant of the greater charged offense and convict the defendant of the lesser offense. Here, based on the evidence presented at trial, there was no rational basis for the jury to simultaneously acquit defendant of felony menacing and convict him of disorderly conduct. The Court of Appeals' judgment was reversed.

In this case, the Supreme Court considered whether unlawful sexual contact is a lesser included offense of sexual assault. Because establishing the elements of sexual assault by means of penetration necessarily establishes the elements of unlawful sexual contact, the Court concluded that unlawful sexual contact is a lesser included offense of sexual assault. Accordingly, the Court reversed the judgment of the Court of Appeals and remanded the case with instructions to vacate defendant's conviction for unlawful sexual contact.

In this case, the Supreme Court considered whether a prospective juror's silence in response to rehabilitative questioning constitutes evidence sufficient to support a trial court's conclusion that the juror has been rehabilitated. The Court concluded that it does when, in light of the totality of the circumstances, the context of that silence indicates that the juror will render an impartial verdict according to the law and the evidence submitted to the jury at the trial. The Court further concluded that, applying this test, the trial court did not abuse its discretion in denying defense counsel's challenges for cause. Accordingly, the judgment of the Court of Appeals was reversed.

This case required the Supreme Court to decide whether a trial court abused its discretion in denying a continuance that defense counsel requested seeking more time to prepare for trial. At the time the continuance was requested, the trial court considered the following factors: (1) defense counsel would have three weeks to prepare for a two- or three-day trial involving eight witnesses and no physical evidence, but defense counsel refused to make specific arguments on why the additional time was needed (2) the trial court would have had to rearrange its docket and possibly hand off the case to a different judge (3) priority is given to cases involving the sexual assault of a child and (4) the victim's family wanted to resolve the case promptly. The Supreme Court concluded that, under these circumstances, the trial court's decision to deny a continuance was not so manifestly arbitrary, unreasonable, or unfair to constitute an abuse of discretion. Therefore, the Court reversed the Court of Appeals' judgment and remanded the case for proceedings consistent with this opinion.

The Supreme Court reviewed the Court of Appeals' opinion crediting defendant for a confinement period after a not guilty by reason of insanity verdict on an unrelated charge. Under CRS § 18-1.3-405, credit is to be given only where the presentence confinement is caused by the charge on which the defendant is being sentenced. Considering Massey v. People, 736 P.2d 19 (Colo. 1987), and People v. Freeman, 735 P.2d 879 (Colo. 1987), the Court concluded that defendant was not entitled to presentence confinement credit for her confinement before or after the not guilty by reason of insanity verdict. Accordingly, the Court affirmed the judgment of the Court of Appeals in part and reversed in part, and remanded the case for further proceedings consistent with this opinion

The Supreme Court reviewed the Court of Appeals' opinion affirming a trial court's order requiring a pair of litigants to pay a court-appointed accounting expert's post-settlement collection costs. The trial court appointed the expert to help resolve the litigants' complex accounting claims, and the litigants signed an engagement agreement with the expert setting forth the scope of his services and payment. After the expert commenced work, the litigants settled the case and the trial court dismissed the suit. The expert then informed the trial court that the litigants refused to pay both his outstanding fees and his costs incurred post-settlement in attempting to collect the outstanding fees. Relying on a provision in the engagement agreement stating that the litigants were responsible for payment of "all fees and expenses" to the expert, the trial court held that the expert was entitled to the post-settlement costs he incurred while trying to collect his outstanding fees. The Court of Appeals disagreed with the trial court's interpretation of the engagement agreement, holding that the agreement was silent as to the expert's post-settlement collection costs, but it nevertheless affirmed the trial court's award of the expert's post-settlement collection costs on the ground that the trial court had inherent authority to require the litigants to pay such costs. The Court held that a separate provision of the engagement agreement not previously considered by the trial court or the Court of Appeals authorized the trial court's award of the disputed post-settlement collection costs. The Court therefore affirmed the award of these costs to the expert, albeit on different grounds.

In this case, the Supreme Court considered whether an amendment to Colorado Rule of Civil Procedure 26(a)(2)(B) providing that expert testimony "shall be limited to matters disclosed in detail in the [expert] report" mandates the exclusion of expert testimony as a sanction when the underlying report fails to meet the requirements of Rule 26. The Court concluded this amendment did not create mandatory exclusion of expert testimony and that instead, the harm and proportionality analysis under Rule 37(c) remains the proper framework for determining sanctions for discovery violations. Accordingly, the Court made its rule to show cause absolute and remanded the case for further proceedings.

This case required the Supreme Court to determine whether the district court had the authority to continue to collect unpaid restitution, court costs, and fees ordered as conditions of petitioner's deferred sentence after the completion of that deferred sentence. The Court concluded that the district court may collect any unpaid restitution from petitioner after the completion of her deferred sentence, until the restitution has been paid in full. With respect to the unpaid fees and costs, however, the Court concluded that the district court lacked the authority to collect such unpaid amounts after it terminated petitioner's deferred sentence, withdrew her guilty plea, and dismissed her case with prejudice. Accordingly, the Court affirmed the district court's orders in part and reversed in part.

This case required the Supreme Court to determine when the right of contribution provided in 26 USC § 6672(d) (2012) gives rise to a "claim" under the U.S. Bankruptcy Code. Applying the "conduct test," under which a claim arises for bankruptcy purposes at the time the debtor committed the conduct on which the claim is based, the Court concluded that petitioner's claim for contribution arose when the parties' jointly owned company incurred federal tax withholding liability, rendering the parties potentially responsible for that debt. Because this conduct occurred before respondents filed their bankruptcy petition, the Court concluded that petitioner's claim constituted a pre-petition debt that was subject to discharge. Accordingly, the Court affirmed the judgment of the Court of Appeals.

Arvada police arrested a severely injured man and sent him to Denver Health Medical Center. Denver Health and Hospital Authority (Denver Health) sued Arvada for the cost of care, claiming that CRS § 16-3-401, which says that persons in custody "shall be . . . provided . . . medical treatment," required Arvada to pay the hospital for the detainee's care. Here, the Supreme Court clarified that (1) whether a statute provides a private right of action is a question of standing, and (2) the same test for a private right of action under Allstate Insurance Co. v. Parfrey, 830 P.2d 905 (Colo. 1992), applies for claims against both governmental and non-governmental defendants. Applying Parfrey to Denver Health's statutory claim, the Court held that CRS § 16-3-401 does not provide hospitals a private right of action to sue police departments for the cost of providing healthcare to persons in custody. Accordingly, it concluded that the trial court erred by granting summary judgment to Denver Health on the statutory claim. The Court remanded the case for consideration of Denver Health's unjust enrichment claim based on Arvada's statutory duty to provide care for persons in custody.

This case required the Supreme Court to determine whether Colorado's human smuggling statute, CRS § 18-13-128, is preempted by the federal Immigration and Nationality Act, 8 USC §§ 1101–1537 (2017) (INA). The Court concluded that the INA preempts CRS § 18-13-128 under the doctrines of both field and conflict preemption. In reaching this conclusion, the Court agreed with a number of federal circuit courts that have reviewed the same INA provisions at issue here and have determined that those provisions create a comprehensive framework to penalize the transportation, concealment, and inducement of unlawfully present aliens and thus evince a congressional intent to occupy the field criminalizing such conduct. In addition, applying the analyses set forth in those federal decisions, the Court concluded that CRS § 18-13-128, like the state human smuggling statutes at issue in the federal cases, stands as an obstacle to the accomplishment and execution of Congress's purposes and objectives in enacting its comprehensive framework. Accordingly, the Court reversed petitioner's judgment of conviction under CRS § 18-13-128.

The Supreme Court held that the Sixth Amendment right to counsel of choice includes the right to fire retained counsel without having to show good cause, even when the defendant wants appointed counsel. But defendants who fire retained counsel will not necessarily be allowed to proceed as they wish. Accordingly, trial courts must ensure that defendants understand the consequences of firing retained counsel. The Court outlined the analysis that trial courts should conduct before releasing retained counsel from a case. Because the Court of Appeals erred by requiring Ronquillo to show good cause for firing retained counsel, the Court reversed and remanded for further proceedings.

In this interlocutory appeal, the Supreme Court concluded that a conversation between defendant and a law enforcement officer that took place in a hospital did not constitute custody for Miranda purposes. Under the totality of the circumstances, the Court concluded that a reasonable person in defendant's position would not have believed that his freedom of action had been curtailed to a degree associated with a formal arrest. Assuming without deciding that giving Miranda warnings can be considered in determining whether a suspect is in custody, the Court concluded that defendant was not in custody during any part of his conversation with the law enforcement officer. Therefore, the Court reversed the trial court's suppression order.

In this case, the Supreme Court considered whether a trial court erred when it gave a jury instruction that allowed the jury to apply either the consumer expectation test or the risk-benefit test to determine whether a driver's car seat was unreasonably dangerous due to a design defect. The Court concluded that the risk-benefit test is the appropriate test to assess whether a product was unreasonably dangerous due to a design defect when, as here, the dangerousness of the design is "defined primarily by technical, scientific information." Ortho Pharm. Corp. v. Heath, 722 P.2d 410, 414 (Colo. 1986), overruled on other grounds by Armentrout v. FMC Corp., 842 P.2d 175, 183 (Colo. 1992). The Court further concluded that the jury's separate finding of negligence did not render the instructional error harmless in this case.

Taxation—Abatement—Overvaluation. The Supreme Court held that CRS § 39-10-114(1)(a)(I)(A) allows abatement and refund for illegally or erroneously levied taxes based on overvaluation caused by taxpayer error. This result follows from the statute's plain text that allows abatement for "overvaluation" without making a distinction between government- and taxpayer-caused overvaluations. The Court rejected the Court of Appeals' holding that Coquina Oil Corp. v. Larimer County Board of Equalization, 770 P.2d 1196 (Colo. 1989), and Boulder County Board of Commissioners v. HealthSouth Corp., 246 P.3d 948 (Colo. 2011), require a different result. Coquina was superseded by the 1991 legislative amendment that added "overvaluation" as a ground for abatement, and HealthSouth's holding was limited to intentional taxpayer overvaluations. The Court reversed the Court of Appeals' judgment and remanded for further proceedings.