In re A.B

COLORADO COURT OF APPEALS 2016COA170

Court of Appeals No. 15CA2015
City and County of Denver Juvenile Court Nos. 15JD668 & 15JD699
Honorable D. Brett Woods, Judge

The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of A.B.,

Juvenile-Appellant.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
SENTENCE VACATED, AND CASE REMANDED WITH DIRECTIONS

Division III
Opinion by JUDGE WEBB
Hawthorne and Navarro, JJ., concur

Announced November 17, 2016

Cynthia H. Coffman, Attorney General, Joseph G. Michaels, Assistant Attorney
General, Denver, Colorado, for Petitioner-Appellee

Michael S. Juba, Alternate Defense Counsel, Denver, Colorado, for
Juvenile-Appellant
¶1 The Denver Juvenile Court found A.B., a juvenile, guilty of

possession of a weapon by a previous offender (POWPO),

adjudicated him a delinquent, and imposed a sentence of one to two

years in the Division of Youth Corrections. On appeal, A.B.

contends the court erred in denying his motion to suppress the

weapon as the fruit of an unlawful seizure; in treating a pending

deferred adjudication as a prior adjudication for purposes of

POWPO; and in finding him a repeat juvenile offender — based on

the same deferred adjudication — for sentencing. Both of the

deferred adjudication contentions raise novel questions in Colorado.

¶2 We affirm the denial of A.B.’s motion to suppress because even

assuming that a seizure of A.B. occurred when the police contacted

him, they had a reasonable suspicion that he had violated Denver

Revised Municipal Code 38-39, entitled “Disturbance of the peace.”

But because we conclude that a prior deferred adjudication does

not satisfy the prior adjudication element of POWPO, we reverse

A.B.’s adjudication.1

1 Given this conclusion, we need not address A.B.’s repeat juvenile
offender contention, which affects only sentencing.

1
I. Background and Procedural History

¶3 On May 6, 2015, the Adams County District Court accepted

A.B.’s agreement to a deferred adjudication on a charge of

aggravated motor vehicle theft in the first degree, a felony, and

deferred entry of adjudication for one year. Based on the county of

A.B.’s residence, the case was transferred to the Denver Juvenile

Court as 15JD668.

¶4 Less than four months later, Denver police officers arrested

A.B. on the POWPO charge at issue.

¶5 The juvenile court held an evidentiary hearing on A.B.’s

motion to suppress the weapon. One of the officers testified to how

he had found a handgun in the back seat of a car in which A.B. was

a passenger, as discussed fully in Part II below. The court denied

the motion. Then the court proceeded to trial, with the officer

presenting the same testimony. The prosecution’s evidence

included the deferred adjudication in 15JD668.

¶6 When the prosecution rested, A.B. moved for judgment of

acquittal. He conceded the deferred adjudication involved a felony,

but he argued that it did not constitute proof of a prior adjudication

for purposes of POWPO. As to juveniles, POWPO prohibits

2
possessing a firearm “subsequent to the person’s adjudication for

an act which, if committed by an adult, would constitute a felony.”

§ 18-12-108(3), C.R.S. 2016 (emphasis added). The court denied

the motion, A.B. declined to present any evidence, and the court

found him guilty.

¶7 At sentencing, the prosecutor urged the court to find A.B. a

repeat juvenile offender, again based on the deferred adjudication.

The court revoked the deferred adjudication, on that basis found

A.B. a repeat juvenile offender, and imposed a sentence of one to

two years in the Division of Youth Corrections.

¶8 The Attorney General agrees that all of the issues A.B. raises

in this appeal were preserved.

II. Motion to Suppress

¶9 A.B. first contends the trial court erred by denying his motion

to suppress the handgun. A.B. asserts that the search was

unconstitutional because when police officers ordered him to get

back in the car, they seized him but lacked reasonable suspicion to

do so. We conclude that the trial court properly denied A.B.’s

motion.

3
A. Standard of Review

¶ 10 A trial court’s ruling on a motion to suppress presents a mixed

question of fact and law. People v. Martinez, 165 P.3d 907, 909

(Colo. App. 2007). We defer to the trial court’s findings of fact if

they are supported by competent evidence in the record, but we

review its conclusions of law de novo. Id. Of course, “[w]e review de

novo the trial court’s ultimate legal conclusion of whether a seizure

violated constitutional prohibitions against unreasonable searches

and seizures.” People v. Funez-Paiagua, 2012 CO 37, ¶ 6.

B. Additional Background

¶ 11 A.B. did not testify at the suppression hearing. One of the

police officers testified that around 9 p.m. on the night of A.B.’s

arrest, he heard “loud music coming from [a parked] vehicle . . .

around 100 feet” away in an alley. The officer and his partner

decided to contact the occupants of the vehicle “solely to investigate

the noise violation,” although they were not “responding to any

citizen complaints.” They pulled their patrol car behind the suspect

vehicle, parking at a forty-five-degree angle. Immediately, all three

occupants in the suspect vehicle “exit[ed] at the same time.” A.B.

got out of the “driver’s side rear door.”

4
¶ 12 As the officers left the patrol car, they “order[ed] everybody

back into the [suspect] vehicle.” Both officers were “yelling.” A.B.

then “turned his back to [the officer] and [that officer] saw him

reach towards his waistband with his right hand.” The officer

“observed a gun leaving his hand as he threw it into . . . the

vehicle.”

¶ 13 As to the noise violation, the officer explained that the loud

music “was coming from a radio . . . [i]n the vehicle,” although the

officer did not see A.B. “operating the radio.” Nor did the “vehicle

have a permit for sound amplification.”

¶ 14 A.B.’s counsel argued that the officers’ actions in blocking the

suspect vehicle and then ordering the occupants back inside

constituted a seizure, which required “reasonable articulable

suspicion of criminal activity.” But according to counsel, the

officers lacked such suspicion as to A.B. because as “a rear

passenger in [the] vehicle,” he could not “possibly violate [Denver

Rev. Mun. Code 38-89] where the noise is coming from the car radio

being operated from the front by a driver or possibly from the front

passenger.”

¶ 15 In denying A.B.’s motion, the trial court found:

5
 “The evidence is that [the officers heard] the loud noise

coming from the car.”

 “The officers pulled up behind the car. It’s unclear as to

precisely how they parked, whether they blocked the car or

not but the officers had probable cause to be there because of

the loud music coming from the car.”

 “[A]ll three people got out of the car at about the same time, at

the same time that [the officer] yelled at them.”

 “And then [A.B.] turned, and that’s when he reached for his

waistband, and that’s when [the officers] saw the gun.”

C. Law

¶ 16 Citizens enjoy a constitutional right to be free from

unreasonable seizures. U.S. Const. amend. IV; Colo. Const. art. II,

§ 7. Still, “[n]ot every encounter between police and citizens

implicates Fourth Amendment concerns because a ‘seizure’ does

not occur until a police officer has restrained the liberty of the

citizen.” People v. Marujo, 192 P.3d 1003, 1005 (Colo. 2008). The

“key question in determining whether a person has been ‘seized’ is

whether, ‘in view of all of the circumstances surrounding the

6
incident, a reasonable person would have believed that he was not

free to leave.’” Id. at 1006 (citation omitted).

¶ 17 A police officer may “seize” a person and conduct an

investigatory stop if three conditions are met: (1) the officer must

have a reasonable suspicion that criminal activity has occurred, is

taking place, or is about to take place; (2) the purpose of the

intrusion must be reasonable; and (3) the scope and character of

the intrusion must be reasonably related to its purpose. People v.

Janis, 2016 COA 69, ¶ 46.

¶ 18 “Reasonable suspicion exists when the facts known to the

officer, taken together with rational inferences from those facts,

create a reasonable and articulable suspicion of criminal activity

which justifies an intrusion into the defendant’s personal privacy at

the time of the stop.” Funez-Paiagua, ¶ 9. To determine whether

reasonable suspicion exists, “a court must consider the facts and

circumstances known to the officer at the time of the intrusion.” Id.

D. Analysis

¶ 19 Initially, the parties disagree as to whether the officers seized

A.B.

7
¶ 20 The Attorney General argues that merely telling A.B. to return

to the vehicle was an instruction “required for a safe encounter,”

not a seizure. See People v. Fines, 127 P.3d 79, 81 (Colo. 2006) (“[A]

passenger is not seized . . . merely because the vehicle in which she

is riding is subjected to a traffic stop, nor does her removal from the

car for safety reasons, without particularized suspicion, amount to

an illegal seizure of her person.”) (citation omitted). And according

to the Attorney General, the officers’ parking behind the vehicle was

“a display of authority directed at the car, not A.B.”

¶ 21 A.B. responds that a seizure occurred because the “[o]fficers

approached the vehicle and parked their fully marked police vehicle

at an angle behind the parked vehicle, blocking it into the parking

space;” and “[t]wo officers immediately exited their patrol vehicle

and yelled at A.B. multiple times to get back into the vehicle.” See

Marujo, 192 P.3d at 1006 (“Examples of circumstances that would

lead a reasonable person to feel that he was not free to leave or

terminate the encounter include ‘the threatening presence of several

officers, the display of a weapon by an officer, some physical

touching of the person of the citizen, or the use of language or tone

8
of voice indicating that compliance with the officer’s request might

be compelled.’”) (citation omitted).

¶ 22 The following facts support the Attorney General: the officers

did not activate their siren or emergency lights — instead they

approached a parked vehicle, see People v. Walters, 249 P.3d 805,

809 (Colo. 2011) (“[W]hen a police officer does not pull over a

vehicle, but approaches an individual in a vehicle that is already

parked, the encounter does not automatically constitute an

investigatory stop.”); the officers did not display a weapon, see id. at

810 (finding no seizure where officer “did not display or gesture

toward his weapon”); and the officers did not touch A.B., see People

v. Bowles, 226 P.3d 1125, 1131 (Colo. App. 2009) (“[N]o testimony

. . . suggests that either officer touched [defendant] or retained

anything that might have prevented her from leaving the

scene . . . .”).

¶ 23 But other facts favor A.B.: the officers’ patrol car was parked

directly behind the suspect vehicle, potentially blocking it, see

People v. Scheffer, 224 P.3d 279, 285 (Colo. App. 2009) (The

defendant was not seized where there was “no indication in the

record that either officer blocked defendant’s path or impeded his

9
ability to terminate the encounter.”); the officers demanded in a

yelling tone that the occupants return to the vehicle, cf. Marujo, 192

P.3d at 1008 (There was no seizure where the officer “requested, but

did not demand, that the [defendant] step toward him” and the

officer “asked, but did not order, [the defendant] to submit to a pat

down.”); and A.B.’s ability to end the encounter by walking away

was impeded by these demands, see People v. Dixon, 21 P.3d 440,

446 (Colo. App. 2000) (A seizure occurred where officer “had no

lawful basis to order defendant back to the car.”).2

¶ 24 Thus, whether A.B. was seized presents a close question.

“[C]ourts are properly reluctant to resolve constitutional

questions . . . .” Libertarian Party of Colo. v. Williams, 2016 COA 5,

¶ 22 (quoting Smith v. Robinson, 468 U.S. 992, 1007 (1984)) (cert.

granted in part Sept. 12, 2016). And resolving the unconstitutional

seizure issue is not necessary if — even assuming A.B. was seized

2 But see United States v. Williams, 419 F.3d 1029, 1033 (9th Cir.
2005) (holding that officer’s order to get back into the vehicle merely
maintained the status quo by returning the passenger to his
original position); Rogala v. District of Columbia, 161 F.3d 44, 53
(D.C. Cir. 1998) (A passenger being ordered by the police to get back
into a vehicle that she voluntarily exited was not an unreasonable
seizure because “a police officer has the power to reasonably control
the situation by requiring a passenger to remain in a vehicle during
a traffic stop.”).

10
— the seizure was supported by reasonable suspicion. For the

following reasons, we conclude that it was.

¶ 25 Under Denver Revised Municipal Code 38-89(b):

No person shall use or operate or allow to be
used or operated any loudspeaker, public
address system, radio, tape player, disc player
or other sound-amplifying equipment in or on
a motor vehicle in such a manner as to be
plainly audible at twenty-five (25) feet from the
motor vehicle unless a permit has been
issued . . . .

(Emphasis added.)

¶ 26 The officer testified that he heard loud music coming from the

vehicle that A.B. was in when it was approximately 100 feet away.

These facts gave the officer reasonable suspicion to believe criminal

activity — i.e., a violation of section 38-89(b) — was occurring. See

People v. Grenier, 200 P.3d 1062, 1069 (Colo. App. 2008) (finding

reasonable suspicion to support an investigatory stop where the

defendant’s nearby car was parked in violation of a local ordinance).

¶ 27 Conceding as much, A.B. argues that a potential violation of

section 38-89(b) could not have provided reasonable suspicion as to

him because the officer did not see A.B. operating the radio and his

11
ability to have done so from the back seat was doubtful. This

argument falls short.

¶ 28 The scope of section 38-89(b) is broad: “[n]o person shall use

or operate or allow to be used or operated” a range of

sound-amplifying equipment, including a “loudspeaker, public

address system, radio, tape player, [and] disc player.” Viewing the

facts and circumstances known to the officers when they pulled in

behind the vehicle, reasonable suspicion existed as to all

occupants. At that time, the officers knew only that loud music was

coming from the vehicle. The source could have been a built-in

dashboard radio accessible to front seat passengers or a

stand-alone boombox in the rear passenger seat accessible to A.B.3

Nor did they know who was operating the equipment. See United

States v. Hafford, No. Crim. A. 11-14-BAJ-CN, 2011 WL 2269161,

at *2 (M.D. La. June 7, 2011) (Officer’s “personal detection of loud

music coming from [the defendant’s] vehicle would be sufficient for

3 Indeed, the car stereo could have been controlled from a phone in
the rear seat. See Marcy Rauer Wagman & Rachel Ellen Kopp, The
Digital Revolution Is Being Downloaded: Why and How the Copyright
Act Must Change to Accommodate an Ever-Evolving Music Industry,
13 Vill. Sports & Ent. L.J. 271, 277 n.17 (2006) (“Using [a]
Bluetooth adapter, customers hook the phone directly into their car
stereo . . . .”).

12
the officer to form a reasonable suspicion that the municipal

ordinance was being violated.”); In re A.S., No. 04-10-00621, 2011

WL 1303700, at *3 (Tex. App. Apr. 6, 2011) (“[T]he vehicle in which

[the juvenile] was riding was in violation of [a noise ordinance] . . . .

Therefore, the initial stop of the vehicle and its occupants was

supported by reasonable suspicion . . . .”).

¶ 29 Alternatively, A.B. argues that the evidence does not show a

violation of section 38-89(b) occurred “because there was no

information that any party was actually disturbed.” But his

reliance on Flores v. City & County of Denver, 122 Colo. 71, 75, 220

P.2d 373, 375 (1950) — where the supreme court held “in order

that any person ‘shall disturb the peace of others,’ it is necessary

that the peace of others be actually disturbed, and, to establish the

offense, proof of such actual disturbance is necessary” — is

misplaced.

¶ 30 True enough, a violation of the noise ordinance in Flores

required that “others in the vicinity [be] disturbed thereby.” Id. at

73, 220 P.2d at 374. And such language is also found in section

38-89(a):

13
It shall be unlawful for any person to disturb
or tend to disturb the peace of others by
violent, tumultuous, offensive or obstreperous
conduct or by loud or unusual noises or by
unseemly, profane, obscene or offensive
language calculated to provoke a breach of the
peace or for any person to permit any such
conduct in any house or upon any premises
owned or possessed by such person or under
their management or control, when within
such person’s power to prevent, so that others
in the vicinity are or may be disturbed thereby.

(Emphasis added.)

¶ 31 But section 38-89(b) does not include similar language. Thus,

we decline to interpret this section as requiring the disturbance of

others. Cf. Dep’t of Transp. v. Amerco Real Estate Co., 2016 CO 62,

¶ 32 (“We will not add words to a statute . . . [and] [i]n the absence

of ambiguity, we apply the statute’s language as written.”).

¶ 32 In the end, we conclude that the arresting officers had

reasonable suspicion to seize A.B. based on a suspected violation of

section 38-89(b). Thus, the trial court did not err by denying A.B.’s

suppression motion.

III. Judgment of Acquittal

¶ 33 A.B. next contends that because section 18-12-108(3) does not

identify a deferred adjudication as the predicate felony offense for

14
POWPO, the trial court erred by denying his motion for judgment of

acquittal. We agree.

A. Standard of Review

¶ 34 “When reviewing the denial of a motion for a judgment of

acquittal, we ‘review the record de novo to determine whether the

evidence before the jury was sufficient both in quantity and quality

to sustain the convictions.’” Montes-Rodriguez v. People, 241 P.3d

924, 927 (Colo. 2010) (quoting Dempsey v. People, 117 P.3d 800,

807 (Colo. 2005)).

¶ 35 In doing so, we usually ask whether the relevant evidence,

viewed in the light most favorable to the prosecution, is “substantial

and sufficient to support a conclusion by a reasonable mind that

the defendant is guilty of the charge beyond a reasonable doubt.”

People v. Gonzales, 666 P.2d 123, 127 (Colo. 1983) (quoting People

v. Bennett, 183 Colo. 125, 130, 515 P.2d 466, 469 (1973)). But

here, because the material facts are not in dispute, “we are not

required to weigh the evidence.” Montes-Rodriguez, 241 P.3d at

927. Instead, we must interpret section 18-12-108(3) de novo “and

then apply it to the facts established at trial.” Id.

15
B. Statutory Construction Principles

¶ 36 Statutes should be interpreted “in strict accordance with the

General Assembly’s purpose and intent in enacting them.” In re

2000-2001 Dist. Grand Jury, 97 P.3d 921, 924 (Colo. 2004). In

determining both purpose and intent, we first look to the language

chosen by the General Assembly, see Martin v. People, 27 P.3d 846,

851 (Colo. 2001), giving words and phrases their “plain and

ordinary meaning,” People v. Dist. Court, 713 P.2d 918, 921 (Colo.

1986). We read and consider the statute as a whole, construing it

“to give consistent, harmonious, and sensible effect to all its parts.”

Id. And we must avoid a construction that would be at odds with

the overall legislative scheme. People v. Garcia, 2016 COA 124,

¶¶ 8-10.

C. Analysis

¶ 37 As to juveniles, section 18-12-108(3) provides:

A person commits the crime of possession of a
weapon by a previous offender if the person
knowingly possesses, uses, or carries upon his
or her person a firearm as described in section
18-1-901(3)(h) or any other weapon that is
subject to the provisions of this article
subsequent to the person’s adjudication for an
act which, if committed by an adult, would
constitute a felony . . . .

16
(Emphasis added.)

¶ 38 A.B. was convicted under this section because when he

possessed the handgun, he was under a one-year deferred

adjudication for an act that would have constituted a felony. This

much is undisputed. But whether the term “adjudication” includes

a “deferred adjudication” under this section has never been

addressed in Colorado. On this question, the parties disagree.

¶ 39 A.B. relies on the plain language. After all, section

18-12-108(3) speaks only of “adjudication,” not “deferred

adjudication.”

¶ 40 In response, the Attorney General argues that because under

section 18-12-108(1)4 the term “conviction” “include[s] pending

deferred judgments for adult offenders,” the term “adjudication” in

4 This section provides:

A person commits the crime of possession of a
weapon by a previous offender if the person
knowingly possesses, uses, or carries upon his
or her person a firearm as described in section
18-1-901(3)(h) or any other weapon that is
subject to the provisions of this article
subsequent to the person’s conviction for a
felony . . . .

§ 18-12-108(1), C.R.S. 2016 (emphasis added).

17
section 18-12-108(3) — by analogy — should include deferred

adjudications. The Attorney General relies on cases uniformly

interpreting the statutory term “conviction” as including a deferred

judgment because the adult defendant pleaded guilty. See People v.

Allaire, 843 P.2d 38, 41 (Colo. App. 1992) (“[T]he term ‘conviction,’

used without any reference to judgment, means merely the

establishment of guilt by plea or verdict.”); see also People v.

Kiniston, 262 P.3d 942, 945 (Colo. App. 2011) (“[T]he legislature

intended the term ‘conviction’ . . . to refer, as relevant here, to

defendant’s . . . guilty plea.”).

¶ 41 At first glance, analogizing these two sections has some allure.

To be sure, the purpose of POWPO “is to limit the possession of

firearms by persons whose past conduct has demonstrated that

they are unfit to be entrusted with such dangerous

instrumentalities.” People v. Allen, 111 P.3d 518, 520 (Colo. App.

2004). And juvenile offenders on deferred adjudications as well as

adult offenders on deferred judgments have engaged in such

conduct. But a closer look reveals several flaws in the Attorney

General’s analysis.

18
¶ 42 True, the definition of adjudication in section 19-1-103(2),

C.R.S. 2016, includes “a juvenile [who] has pled guilty to

committing a delinquent act.” Even so, this definition applies only

to title 19 (Children’s Code). § 19-1-103 (“As used in this title or in

the specified portion of this title, unless the context otherwise

requires . . . .”). In contrast, POWPO is a criminal statute in title 18

(Criminal Code). And “[t]he purposes of the Criminal Code are quite

different from the purposes of the Children’s Code.” People v.

Juvenile Court, 893 P.2d 81, 88 (Colo. 1995). This principle looms

large over our analysis. Had the General Assembly intended

otherwise by making section 19-1-103(2) applicable to section

18-12-108(3), it could have cross-referenced it. See People v. Day,

230 P.3d 1194, 1197 (Colo. 2010) (finding that cross-reference in

sentence enhancing statute to a statute containing a specific

offense shows clear intent for the sentence enhancement provision

to apply to that offense).5

5 Numerous statutes in the Criminal Code refer to the Children’s
Code for definitions. See § 18-4-509, C.R.S. 2016 (The court has
discretion, “in the case of a juvenile offender, to impose restorative
justice, as defined in section 19-1-103(94.1).”); § 18-8-208, C.R.S.
2016 (An element of class 3 misdemeanor escape is that the person
“escapes from a staff secure facility as defined in section

19
¶ 43 But even if the use of “adjudication” in POWPO — without a

separate definition — favors looking to section 19-1-103(2), saying

that “‘adjudication’ means conviction” is not the same as saying

that the term “adjudication” includes a “deferred adjudication,”

much less that “‘deferred adjudication’ means conviction.” To the

contrary, the General Assembly “has expressed its intent to

distinguish an adjudication of juvenile delinquency from a deferred

adjudication both as to definition and effect.” C.B. v. People, 122

P.3d 1065, 1067 (Colo. App. 2005) (emphasis added).

¶ 44 To begin, the statute establishing deferred adjudications,

section 19-2-709(1), C.R.S. 2016, provides:

[I]n any case in which the juvenile has agreed
with the district attorney to enter a plea of
guilty, the court, with the consent of the
juvenile and the district attorney, upon
accepting the guilty plea and entering an order
deferring adjudication, may continue the case
for a period not to exceed one year from the
date of entry of the order deferring
adjudication.

Adjudication does not enter at the time of the order deferring

adjudication. Instead, either the district attorney or probation

19-1-103(101.5).”); § 18-18-407, C.R.S. 2016 (“The defendant
solicited, induced, encouraged, intimidated, employed, hired, or
procured a child, as defined in section 19-1-103(18) . . . .”).

20
officer may submit an “[a]pplication for entry of adjudication . . . at

any time within the term of the deferred adjudication or within

thirty-five days thereafter,” or “[i]f the juvenile fails to comply with

the terms of supervision, the court shall enter an order of

adjudication.” § 19-2-709(3.5) & (4).

¶ 45 If neither scenario occurs — and the juvenile complies with

the conditions of the deferred adjudication — then “the plea of the

juvenile . . . shall be withdrawn and the case dismissed.”

§ 19-2-709(3) (emphasis added). One might wonder why this

section says nothing about the adjudication having to be vacated.

The answer is that at this point, an adjudication has not yet been

entered.

¶ 46 The Attorney General’s argument that “a juvenile who has not

yet completed his deferred adjudication has . . . an existing

conviction” fails for two additional reasons.

¶ 47 First, the argument ignores the differences between the

Criminal Code and the Children’s Code. Under the Criminal Code,

“[t]he acceptance by the court of a plea of guilty . . . acts as a

conviction for the offense.” § 16-7-206(3), C.R.S. 2016. In contrast,

“a Colorado juvenile adjudication is not a felony conviction.” People

21
v. Armand, 873 P.2d 7, 10 (Colo. App. 1993); see People v. Casillas,

2015 COA 15, ¶ 32 (The defendant “was not convicted of a crime,

because a deferred adjudication is not a final conviction.”) (cert.

granted in part May 16, 2016).

¶ 48 Second, where the General Assembly has sought to equate a

deferred adjudication to a conviction, it has done so expressly. See

§ 16-22-102(3), C.R.S. 2016 (Under the Colorado Sex Offender

Registration Act, conviction “means having received . . . a deferred

adjudication.”).

¶ 49 Undaunted, the Attorney General correctly points out that

under C.R.J.P. 1, “[p]roceedings in delinquency shall be conducted

in accordance with the Colorado Rules of Criminal Procedure,

except as otherwise provided by statute or by these rules.” Thus,

the Attorney General continues, a deferred adjudication should be

“treated the same as adult deferred judgments.” But this argument

misses the mark because the Attorney General fails to identify

anything in those rules that illuminates the nature of a deferred

adjudication or the relationship between such an adjudication and

a conviction.

22
¶ 50 Instead, the Attorney General cites People in Interest of K.W.S.,

where the division held — in analyzing a juvenile’s challenge to a

deferred adjudication — that “where a defendant pleads guilty

pursuant to a deferred judgment and sentence agreement, ‘Crim. P.

35 review is not available until a deferred judgment is revoked and

a judgment of conviction entered.’” 192 P.3d 579, 581 (Colo. App.

2008) (quoting People v. Manzanares, 85 P.3d 604, 611 (Colo. App.

2003)). But treating both deferred adjudications and deferred

judgments similarly under Crim. P. 35 does not inform the question

whether a deferred adjudication can be used under POWPO. This

inquiry requires a statutory, not a rule-based, analysis.

¶ 51 With this distinction in mind, we look to statutes that treat

deferred adjudications as distinct from adjudications to light the

path. Under section 16-11.7-102, C.R.S. 2016, a “‘[j]uvenile who

has committed a sexual offense’ means a juvenile who has been

adjudicated as a juvenile or who receives a deferred adjudication.”

(Emphasis added.) Other examples abound.6

6 See also § 18-1-1102(2), C.R.S. 2016 (“For purposes of paragraph
(d) of subsection (1) of this section, conviction shall also include a
juvenile delinquent adjudication or deferred adjudication.”)
(emphasis added); § 18-1.3-104(3)(b), C.R.S. 2016 (“For purposes of

23
¶ 52 But unlike these statutes, section 18-12-108(3) refers only to

“adjudication.” See People v. Rediger, 2015 COA 26, ¶ 29 (“[I]f the

legislature had wanted to include ‘any person carrying out the

duties or functions of a public employee,’ it could have done so by

express language.”) (cert. granted on other grounds Feb. 16, 2016).

Thus, “we must accept the General Assembly’s choice of language

and not add or imply words that simply are not there.” People v.

Benavidez, 222 P.3d 391, 393-94 (Colo. App. 2009).

¶ 53 Given all this, only brief mention need be made of the Attorney

General’s emphasis on the purpose of POWPO to restrict possession

of firearms based on past conduct. At this level, too, adults differ

this subsection (3), ‘convicted’ means a conviction by a jury or by a
court and shall also include a deferred judgment and sentence, a
deferred adjudication, an adjudication, and a plea of guilty or nolo
contendere.”) (emphasis added); § 18-1.3-602(2), C.R.S. 2016
(“‘Conviction’ means . . . adjudication for an offense that would
constitute a criminal offense if committed by an adult. ‘Conviction’
also includes having received a deferred judgment and sentence or
deferred adjudication; except that a person shall not be deemed to
have been convicted if the person has successfully completed a
deferred sentence or deferred adjudication.”) (emphasis added);
§ 18-21-103(1.5), C.R.S. 2016 (“[E]ach juvenile who is adjudicated
for commission of an offense that would constitute a sex offense if
committed by an adult or who receives for such offense a deferred
adjudication shall be required to pay a surcharge to the clerk of the
court in which the adjudication occurs or in which the deferred
adjudication is entered.”) (emphasis added).

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from juveniles. Subject to POWPO and restrictions such as the

“reasonable exercise of the state’s police power,” Rocky Mountain

Gun Owners v. Hickenlooper, 2016 COA 45M, ¶ 21, adults enjoy a

broad constitutional right to possess firearms. See Colo. Const. art.

II, § 13. In contrast, a juvenile’s possession of firearms is limited by

section 18-12-108.5, C.R.S. 2016, which says, “[e]xcept as provided

in this section, it is unlawful for any person who has not attained

the age of eighteen years knowingly to have any handgun in such

person’s possession.”

¶ 54 In sum, because the plain language of section 18-12-108(3)

refers only to a prior “adjudication,” the prosecutor’s evidence of

A.B.’s deferred adjudication did not prove his adjudication under

this section.

¶ 55 The denial of A.B.’s motion to suppress is affirmed, the

adjudication is reversed, the sentence is vacated, and the case is

remanded for entry of a judgment of acquittal.

JUDGE HAWTHORNE and JUDGE NAVARRO concur.

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