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 

¶ 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. 
2 

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 
3 

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. 
4 

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.” 
5 

¶ 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: 
6 

 “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 
7 

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. 
8 

¶ 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 
9 

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 
10 

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.”). 
11 

— 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 
12 

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 . . . .”). 
13 

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): 
14 

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 
15 

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.
16 

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 . . . . 
17 

(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). 
18 

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. 
19 

¶ 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 
20 

¶ 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) . . . .”). 
21 

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 
22 

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. 
23 

¶ 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 
24 

¶ 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). 
25 

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.