No. 90CA1874Colorado Court of Appeals.
Decided May 21, 1992. Rehearing Denied July 2, 1992. Certiorari Denied January 19, 1993 (92SC484).
Appeal from the District Court of Routt County Honorable Richard P. Doucette, Judge.
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Gale A. Norton, Attorney General, Raymond T. Slaughter, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Laurie A. Booras, Assistant Attorney General, for Plaintiff-Appellee.
David F. Vela, Colorado State Public Defender, Robin Desmond, Deputy State Public Defender, for Defendant-Appellant.
Division III.
Opinion by JUDGE JONES.
[1] Herbert Andrew Allaire, defendant, appeals the judgment of conviction entered upon a jury verdict finding him guilty of possession of a weapon by a previous offender. We affirm. [2] On October 22, 1990, defendant was convicted by a jury of possession of a weapon by a person previously convicted of “a felony involving the use of force or violence,” pursuant to § 18-12-108, C.R.S. (1986 Repl. Vol. 8B). The evidence admitted to establish defendant’s prior felony conviction showed that he had pleaded guilty to second degree assault, designated in the minute order as a class four felony. However, the minute order did not specify the circumstances of the crime or the statutory subsection under which defendant had been convicted. [3] The trial court rejected defendant’s jury instruction setting forth the elements of the weapons possession offense. Instead, over defendant’s objections, the trial court submitted to the jury an elemental instruction which, rather than including the statutory element relating to a previous conviction of “a felony involving the use of force or violence or the use of a deadly weapon,” included language which stated that defendant had been convicted “of the crime of Assault in the Second Degree.” I.
[4] The trial court ruled that, because second degree assault is included as a crime within the definition of a “crime of violence,” §16-11-309(2)(a)(I), C.R.S. (1986 Repl. Vol. 8A), it is also a “felony involving the use of force or violence.” In claiming error, defendant refers to the crime of assault in the second degree as defined in §18-3-203(1)(e), C.R.S. (1986 Repl. Vol. 8B) which involves injury to another resulting from the administration of a drug or other substance. We agree that the court erred in expressing its rationale. However, we further conclude that the jury instruction was correct.
A.
[5] Defendant contends that the trial court erred by instructing the jury that proof of a conviction of second degree assault would be sufficient to establish the prior “felony involving force or violence” element of the weapon possession crime. We agree in part but conclude that no reversible error occurred.
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the defendant causes serious bodily injury to that person or another.” Section 18-3-203(1)(b),(d), and (g), C.R.S. (1986 Repl. Vol. 8B).
[7] However, the crime of second degree assault, when it is classified as a class four felony, may also be committed by means other than those enumerated under the “crime of violence” statute. Thus, the trial court erred in its specific ruling that second degree assault always involves force or violence as a matter of law because it is included as a crime within the definition of a “crime of violence.” B.
[8] Defendant also contends that the trial court erred in instructing the jury that second degree assault involves force or violence as a matter of law. Specifically, he argues that one method of committing second degree assault does not involve force or violence and that the instruction was therefore erroneous. We disagree.
2 C. Torcia, Wharton’s Criminal Law § 184 (14th ed. 1979). Thus, we conclude that an assault under § 18-3-203(1)(e) does involve force or violence. [12] Therefore, because all of the relevant means by which second degree assault, as a class four felony, can be committed involve the use of force, the trial court did not err in its instruction. [13] The foregoing also disposes of defendant’s contention that there was insufficient evidence to establish that he was previously convicted of a crime involving force or violence.
II.
[14] Defendant next contends that the trial court erred in entering judgment of conviction here because the evidence was insufficient to establish that he had been previously convicted. We do not agree.
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[18] In People v. Jacquez, supra, the court held that the habitual criminal statute requires proof of a previous judgment of conviction because the statute expressly referred to “former conviction or convictions an judgment or judgments.” By contrast, the term “conviction,” used without any reference to judgment, means merely the establishment of guilt by plea or verdict. See Hafelfinger v. District Court, 674 P.2d 375 (Colo. 1984) People v. Baca, 44 Colo. App. 167, 610 P.2d 1083 (1980). [19] Under § 16-7-206(3), C.R.S. (1986 Repl. Vol. 8A), acceptance of a guilty plea acts as a “conviction.” Thus, deferred judgment under § 16-7-403(1), C.R.S. (1991 Cum. Supp.) is granted after acceptance of a guilty plea. See Hafelfinger v. District Court, supra. [20] Section 18-12-108 applies to persons “previously convicted.” It contains no reference to judgment or judgment of conviction. We conclude that the phrase “previously convicted,” in § 18-12-108, does not refer to a previous judgment of conviction. The element is satisfied by proof of a guilty plea and deferred judgment; a judgment of conviction and sentencing are not required. See Hafelfinger v. District Court, supra(guilty plea followed by a deferred judgment is a conviction within the meaning of the bail bond statute). To the extent that Webber v. Colorado State Board of Nursing, 830 P.2d 1128 (Colo.App. 1992), which is distinguishable from this case on the facts and the law, may be interpreted differently, it is not applicable here and we decline to follow it. [21] This construction is consistent with the purpose of § 18-12-108, which is to limit possession of firearms by persons whose past conduct demonstrates their unfitness to be entrusted with such deadly weapons. See People v. Tramaglino, 791 P.2d 1171 (Colo.App. 1989). A person who pleads guilty to a crime involving force or violence admits actions showing unfitness to possess a firearm. Requiring formal judgment and sentencing would not further the purposes for which the General Assembly promulgated the statute.
III.
[22] Defendant, finally, contends that the trial court erred in failing to provide him with an adequate advisement as required by People v. Curtis, 681 P.2d 504 (Colo. 1984). He argues that the advisement given him was inadequate because it did not inform him that the jury could be instructed to consider convictions brought out on cross-examination only as they bear on his credibility and that they could not be used as proof of the “previously convicted” element of § 18-12-108. We perceive no error.