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Caswell v. People.

2023 CO 50. No. 21SC749. CRS § 18-9-202, Cruelty to Animals—Recidivist Provision—Misdemeanor→Felony Transforming Fact—Element v. Sentence Enhancer—Sixth Amendment Right to a Jury Trial—Article II of the Colorado Constitution.

October 3, 2023

The Supreme Court held that the General Assembly intended to designate the recidivist provision of the cruelty-to-animals statute, CRS § 18-9-202(2)(b)(I), as a sentence enhancer and not as an element of the offense. A sentence enhancer may be proved to a judge by a preponderance of the evidence, and an element of the offense must be proved to a jury beyond a reasonable doubt. The Court further held that where, as here, a cruelty-to-animals (second or subsequent offense) case (1) includes notice in the charging document of the prior conviction for cruelty to animals and (2) is treated as a felony throughout the proceedingsincluding in terms of its prosecution in district court (not county court), the right to a preliminary hearing (if eligible), the number of peremptory challenges, and the number of jurorsthe Sixth Amendment doesn’t require that the misdemeanor→felony transforming fact in subsection (2)(b)(I) be proved to a jury beyond a reasonable doubt. Lastly, the Court held that, even assuming Caswell’s state constitutional challenge was forfeited and not waived, no plain error occurred.

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