People v. Espinoza

COLORADO COURT OF APPEALS 2017COA122

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

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Martin Castruita Espinoza,

Defendant-Appellant.

JUDGMENT AFFIRMED, SENTENCE VACATED,
AND CASE REMANDED WITH DIRECTIONS

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

Announced September 21, 2017

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

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

of conviction entered on jury verdicts finding him guilty of ten

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

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

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

admissibility of his statements to police, alleging that because he

was in custody during the questioning, the statements were

inadmissible. Second, he contends the trial court misconstrued the

applicable sentencing statutes and erroneously concluded it had to

impose consecutive sentences. The latter contention involves

applying existing law to unique facts.

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

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

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

I. Background

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

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

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

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

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

texted him and said that he needed to retrieve them.

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

responded to a structure fire and found the apartment complex

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

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

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

and cousin told the police that they were concerned that Espinoza

was potentially involved with the fire.

¶5 The police interviewed Espinoza and his family members as

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

police station, where he waited for several hours before being

interviewed.1 Espinoza told the police that he had been

panhandling at a Walmart across the street from the apartment

complex when he saw people running toward the building, saying

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

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

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

the interview when Espinoza invoked his right to counsel.

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

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

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

investigators concluded that the fire was incendiary and had started

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

male matching Espinoza’s description using the courtesy phone and

smelling like charcoal, lighter fluid, and smoke.

II. Custodial Interrogation

¶7 Espinoza contends that the trial court failed to consider

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

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

presence of two armed detectives during the interview, and the

confrontational question near the end of the interview. Because the

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

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

Espinoza’s motion to suppress.

3
A. Additional Facts

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

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

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

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

made the following findings:

 Police learned that Espinoza was a potential suspect at

the scene. Acknowledging that they had no probable

cause, the police requested that he come to the police

station for an interview, and Espinoza agreed.

 Espinoza had no transportation and accepted a ride from

an officer.

 Espinoza consented to a pat-down search before entering

the officer’s car.

 Police did not handcuff Espinoza.

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

keep it. Espinoza did not object.

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

through at least one locked door to the detective division

on the second floor.

 The officer placed Espinoza in an interview room,

unrestrained, and provided him with a bottle of water.

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

station in a different room.

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

interviews, two detectives interviewed Espinoza.

 The tone of the interview was conversational, and the

detectives used no coercive interrogation methods or

techniques.

 The detectives wore plain clothes.

 One of the detectives told Espinoza that he was not

under arrest and was free to leave.

 Although closed, the door was located next to Espinoza

and nothing blocked his exit from the interview room.

 Espinoza acknowledged a history of substance abuse and

became emotional when speaking about his mother.

5
 Espinoza was not psychologically unstable, did not

appear intellectually impaired, was not physically

impaired, was not ill, and was not incoherent.

 Espinoza was responsive to questions and very

cooperative.

 When confronted with potential evidence that might

refute his statements, Espinoza stated he understood the

criminal justice system. He explained that if he was a

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

repeated this statement.

 The detectives released Espinoza within five minutes of

his request to leave and after collecting his clothing as

evidence.

 Espinoza became emotional during the clothing

collection, and the detectives never informed him he

could refuse their request to collect it.

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

Although not mentioned by the court, the record also established

the following:

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

the police station. There were double doors that needed

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

to exit.

 Espinoza sat in the interview room for several hours

before the interview began.

 The interview lasted twenty-seven minutes.

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

demonstrated that Espinoza voluntarily spoke with the detectives

and was not in custody when he did so.

B. Standard of Review and Applicable Law

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

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

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

findings and uphold them on review where they are supported by

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

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

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

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

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

18, ¶ 16.

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

totality of the circumstances, a reasonable person in the

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

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

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

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

determinative:

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

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

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

consider the following circumstances:

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

to leave”;

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

traditionally associated with custody and arrest”; and

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

suspect in the investigation.”

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

Miranda custody determination requires applying an objective,

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

C. Application

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

was not in custody for Miranda purposes when detectives

interviewed him. The record shows that Espinoza agreed to speak

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

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

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

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

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

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

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

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

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

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

¶ 13 The record further shows that Espinoza was not physically

restrained and that the tone of the interview was conversational.

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

physical restraint and officer’s conversational tone supported the

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

Espinoza was separated from his mother and stepfather, the record

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

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

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

concerned about . . . coercive interrogation techniques applied to

individuals who are isolated and deprived of contact with friends

and family.”).

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

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

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

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

fifty minutes of aggressive questioning, and detention at the police

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

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

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

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

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

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

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

when Espinoza requested counsel, the police immediately ceased

questioning and released him five minutes later.

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

confrontation of Espinoza with evidence that might refute his

statement requires a different result. Espinoza said that he

understood the criminal justice system and immediately invoked

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

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

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

infringement on his liberty, much less the kind of infringement

associated with a formal arrest.”).

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

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

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

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

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

custodial situation where none of them drew weapons, handcuffed

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

¶ 18 After considering the totality of the circumstances, we

conclude that substantial record evidence supports the court’s

finding that Espinoza was not restrained to the degree associated

with a formal arrest and therefore was not in custody when

interviewed by the detectives.

III. Concurrent or Consecutive Sentencing

¶ 19 Espinoza next contends that the court misapprehended the

applicable law when it ruled that it was required to impose

consecutive sentences for his attempted first degree murder

convictions. We agree.

A. Additional Facts

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

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

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

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

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

court sentenced Espinoza to sixteen years in prison for each

attempted murder conviction and concluded that the crime of

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

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

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

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

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

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

violence, this section requires the Court to impose consecutive

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

degree murder conviction constituted a separate crime of violence

requiring consecutive sentences.

B. Standard of Review and Applicable Law

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

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

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

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

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

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

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

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

2012 COA 176, ¶ 171.

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

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

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

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

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

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

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

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

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

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

¶ 23 If the statutory language is unambiguous and the legislative

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

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

statute appears to conflict with other provisions, then we may

consider other factors, such as legislative history or the

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

Cooper, 27 P.3d at 354.

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

must attempt to reconcile them by giving “harmonious and sensible

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

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

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

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

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

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

2017).

¶ 25 When a court “imposes consecutive sentences under the

mistaken belief that it has no discretion to impose concurrent

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

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

C. Application

¶ 26 We begin by concluding that the general provision of

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

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

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

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

ten attempted murder convictions were supported by identical

15
evidence, despite naming different victims, because the same

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

separately named victims do not create separate crimes of violence

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

each conviction, and in such circumstances, a court retains

discretion to impose concurrent sentences under

section 18-1-408(3).

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

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

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

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

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

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

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

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

identical evidence . . . the sentences imposed shall run

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

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

§ 18-1-408(3) (emphasis added).

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

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

more separate crimes of violence arising out of the same incident

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

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

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

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

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

sentencing discretion in situations where there are multiple counts

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

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

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

One generally requires concurrent sentencing and allows

consecutive sentencing only in circumstances involving multiple

victims, while the other requires consecutive sentencing.

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

provisions by reasoning that “separate crimes” under

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

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

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

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

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

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

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

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

harmonious and sensible effect to both provisions by continuing to

protect defendants from excessive punishment for crimes based on

identical evidence while, at the same time, requiring harsher

punishments for separate acts of violence.

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

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

sentencing requirements in two non-overlapping sets of

circumstances. For multiple violent crimes arising from the same

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

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

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

multiple victims authorizes the court to impose consecutive

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

same criminal episode and not supported by identical evidence are

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

consecutive sentencing.

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

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

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

The relevant question in this context is whether the evidence

supporting each conviction is identical and therefore not separate.

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

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

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

is identical, a court must decide whether the separate convictions

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

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

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

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

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

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

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

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

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

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

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

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

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

attempted murder, attempted aggravated robbery, and second

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

identical evidence and occurred in a single criminal episode lasting

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

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

shows that Espinoza performed separate, volitional acts against any

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

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

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

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

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

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

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

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

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

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

properly refused to exercise its discretion. This argument has

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

crimes involving multiple victims were not based on identical

evidence because each count involved evidence about a different

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

that the existence of multiple victims created factually distinct

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

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

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

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

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

committed upon different victims; therefore, the evidence is not

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

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

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

21
convictions arise from crimes committed upon multiple victims, the

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

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

that there were “separate victims” as one consideration among

several that established separate violent crimes). However, these

cases are distinguishable on their facts.

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

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

that her multiple convictions for animal cruelty violated double

jeopardy and should be merged into a single conviction because

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

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

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

that constituted separate offenses for double jeopardy purposes. Id.

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

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

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

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

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

consecutive sentences for multiple convictions arising from crimes

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

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

language of the statute gave the court discretion to impose

consecutive sentences for multiple crimes involving different

victims. Id.

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

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

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

swerving maneuvers directed at two different police cars during a

single eluding formed distinct factual predicates for two assault

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

evidence was required to establish guilt for each assault, the

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

and required consecutive sentences. Id. at 784.

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

trial courts imposed discretionary consecutive life sentences for the

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

concluded that consecutive sentences could be imposed because

different evidence would be needed to prove the deaths of the

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

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

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

single act destroyed multiple apartments and threatened the lives of

multiple victims. Because the evidence required to prove all ten

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

the attempted murder convictions are not “separate crimes” under

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

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

supported by identical evidence turns on whether they result from

the same criminal act).

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

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

Specifically, following their reasoning, two crimes of violence

naming different victims and supported by identical evidence would

simultaneously require mandatory consecutive sentencing under

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

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

language of both statutes, some evidence beyond the existence of

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

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

24
we conclude the trial court erred when it found that consecutive

sentences were mandatory. Therefore, we vacate Espinoza’s

sentence and remand for resentencing.

IV. Conclusion

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

sentence and remand the case for resentencing consistent with this

opinion.

JUDGE WEBB and JUDGE BOORAS concur.

25