CO Code § 18-18-407 (2021)
2021 Colorado Code|Title 18 - Criminal Code|Article 18 - Uniform Controlled Substances Act of 2013|Part 4 - Offenses and Penalties|§ 18-18-407. Special Offender - Definitions

  A person who commits a felony offense pursuant to this part 4 under any one or more of the following aggravating circumstances commits a level 1 drug felony and is a special offender:   The defendant committed the violation as part of a pattern of manufacturing, sale, dispensing, or distributing controlled substances, which violation is a felony under applicable laws of Colorado, which constituted a substantial source of that person's income, and in which that person manifested special skill or expertise;    The defendant committed the violation in the course of, or in furtherance of, a conspiracy with one or more persons to engage in a pattern of manufacturing, sale, dispensing, or distributing a controlled substance, which offense is a felony under applicable laws of Colorado, and the defendant did, or agreed that he or she would, initiate, organize, plan, finance, direct, manage, or supervise all or part of such conspiracy or manufacture, sale, dispensing, or distributing, or give or receive a bribe, or use force in connection with such manufacture, sale, dispensing, or distribution;    The defendant committed the violation and in the course of that violation, introduced or imported into the state of Colorado more than fourteen grams of any schedule I or II controlled substance listed in part 2 of this article or more than seven grams of methamphetamine, heroin, ketamine, or cathinones, or ten milligrams of flunitrazepam;      The defendant used, displayed, or possessed on his or her person or within his or her immediate reach, a deadly weapon as defined in section 18-1-901 (3)(e) at the time of the commission of a violation; or (d) (I) The defendant used, displayed, or possessed on his or her person or within his or her immediate reach, a deadly weapon as defined in section 18-1-901 (3)(e) at the time of the commission of a violation; or    The defendant or a confederate of the defendant possessed a firearm, as defined in section 18-1-901 (3)(h), to which the defendant or confederate had access in a manner that posed a risk to others or in a vehicle the defendant was occupying at the time of the commission of the violation;       The defendant solicited, induced, encouraged, intimidated, employed, hired, or procured a child, as defined in section 19-1-103, to act as the defendant's agent to assist in the unlawful distribution, manufacturing, dispensing, sale, or possession for the purposes of sale of any controlled substance at the time of the commission of the violation. It is not a defense pursuant to this subsection (1)(e) that the defendant did not know the age of the child.      The defendant engaged in a continuing criminal enterprise by violating any felony provision; and (f) (I) The defendant engaged in a continuing criminal enterprise by violating any felony provision; and    The violation is a part of a continuing series of two or more violations of this part 4 on separate occasions:   Which are undertaken by that person in concert with five or more other persons with respect to whom that person occupies a position of organizer, supervisor, or any other position of management; and    From which that person obtained substantial income or resources.            The defendant is convicted of selling, distributing, possessing with intent to distribute, manufacturing, or attempting to manufacture any controlled substance either within or upon the grounds of any public or private elementary school, middle school, junior high school, or high school, vocational school, or public housing development; within one thousand feet of the perimeter of any such school or public housing development grounds on any street, alley, parkway, sidewalk, public park, playground, or other area or premises that is accessible to the public; within any private dwelling that is accessible to the public for the purpose of the sale, distribution, use, exchange, manufacture, or attempted manufacture of controlled substances in violation of this article; or in any school vehicle, as defined in section 42-1-102 (88.5), C.R.S., while such school vehicle is engaged in the transportation of persons who are students. (g) (I) The defendant is convicted of selling, distributing, possessing with intent to distribute, manufacturing, or attempting to manufacture any controlled substance either within or upon the grounds of any public or private elementary school, middle school, junior high school, or high school, vocational school, or public housing development; within one thousand feet of the perimeter of any such school or public housing development grounds on any street, alley, parkway, sidewalk, public park, playground, or other area or premises that is accessible to the public; within any private dwelling that is accessible to the public for the purpose of the sale, distribution, use, exchange, manufacture, or attempted manufacture of controlled substances in violation of this article; or in any school vehicle, as defined in section 42-1-102 (88.5), C.R.S., while such school vehicle is engaged in the transportation of persons who are students.    The department of education may cooperate with local boards of education and the officials of public housing developments and make recommendations regarding the uniform implementation and furnishing of notice of the provisions of this paragraph (g). Such recommendations may include, but need not be limited to, the uniform use of signs and other methods of notification that may be used to implement this paragraph (g).    For the purposes of this section, the term “public housing development” means any low-income housing project of any state, county, municipal, or other governmental entity or public body owned and operated by a public housing authority that has an on-site manager. “Public housing development”does not include single-family dispersed housing or small or large clusters of dispersed housing having no on-site manager.            of subsection (1) of this section, it may be shown that the defendant has had in his or her own name or under his or her control income or property not explained as derived from a source other than such manufacture, sale, dispensing, or distribution of controlled substances.    For the purposes of paragraph (a) of subsection (1) of this section only, a “substantial source of that person's income” means a source of income which, for any period of one year or more, exceeds the minimum wage, determined on the basis of a forty-hour week and fifty-week year, or which, for the same period, exceeds fifty percent of the defendant's declared adjusted gross income under Colorado or any other state law or under federal law, whichever adjusted gross income is less.    For the purposes of paragraph (a) of subsection (1) of this section, “special skill or expertise” in such manufacture, sale, dispensing, or distribution includes any unusual knowledge, judgment, or ability, including manual dexterity, facilitating the initiation, organizing, planning, financing, directing, managing, supervising, executing, or concealing of such manufacture, sale, dispensing, or distributing, the enlistment of accomplices in such manufacture, sale, dispensing, or distribution, the escape from detection or apprehension for such manufacture, sale, dispensing, or distribution, or the disposition of the fruits or proceeds of such manufacture, sale, dispensing, or distribution.    For the purposes of paragraphs (a) and (b) of subsection (1) of this section, such manufacture, sale, dispensing, or distribution forms a pattern if it embraces criminal acts which have the same or similar purposes, results, participants, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated events.       Reserved.    and (5)(Deleted by amendment, L. 2013.)     History. Source: L. 92: Entire article R&RE, p. 361, § 1, effective July 1. L. 93: (2) amended, p. 972, § 3, effective July 1. L. 94: (2)(a) amended, p. 1723, § 25, effective July 1; (2)(a) amended, p. 2553, § 45, effective January 1, 1995. L. 97: IP(1), (2)(a), and (2)(c) amended, pp. 1542, 1544, §§ 8, 12, effective July 1. L. 2000: (1)(d) and (2)(a) amended, pp. 709, 708, §§ 42, 40, effective July 1. L. 2002: (2)(a) amended, p. 1581, § 6, effective July 1; (2)(a) amended, p. 1520, § 214, effective October 1. L. 2003: IP(1), (2)(a), and (5) amended, p. 1423, § 1, effective April 29. L. 2010: (2)(a) amended,(HB 10-1232), ch. 163, p. 568, § 2, effective April 28; (1)(d), (1)(e), and (1)(f) amended,(HB 10-1352), ch. 259, p. 1170, § 7, effective August 11. L. 2013: Entire section amended,(SB 13-250), ch. 333, p. 1917, § 16, effective October 1. L. 2014: IP(1), (1)(c), and (1)(d)(II) amended,(SB 14-163), ch. 391, p. 1978, § 20, effective July 1. L. 2021: IP(1) and (1)(e) amended,(SB 21-059), ch. 136, p. 725, § 58, effective October 1.    Editor's note:    This section is similar to former § 18-18-107 as it existed prior to 1992.    Amendments to subsection (2)(a) in House Bill 94-1126 and Senate Bill 94-1 were harmonized, effective January 1, 1995. Amendments to subsection (2)(a) by House Bill 02-1237 and House Bill 02-1046 were harmonized.     Cross references:   For the legislative declaration contained in the 2002 act amending subsection (2)(a), see section 1 of chapter 318, Session Laws of Colorado 2002.   ANNOTATION   Law reviews. For article, “Felony Sentencing in Colorado”, see 18 Colo. Law. 1689 (1989).   Annotator's note. Since § 18-18-407 is similar to § 18-18-107 as it existed prior to the repeal and reenactment of this article in 1992, relevant cases construing that provision have been included in the annotations to this section.   Subsection (1)(d) is not unconstitutionally vague or overbroad. There is no constitutionally protected right of expression in introducing, distributing, or importing a controlled substance into Colorado. People v. Garcia, 752 P.2d 570 (Colo. 1988).   The words “introduced,” “distributed,” and “imported” have meanings commonly understood by persons of reasonable intelligence and, therefore, the trial court did not need to provide definitional instructions for these terms. People v. Whitaker, 32 P.3d 511 (Colo. App. 2000), aff'd on other grounds, 48 P.3d 555 (Colo. 2002).   Subsection (1)(d) does not deny defendants' equal protection rights. The special offender statute does not proscribe precisely the same unlawful act as the substantive statute, and any defendant who is convicted of a controlled substance offense, and as part of that criminal act also unlawfully introduced, distributed, or imported the controlled substance into Colorado is subject to the special offender statute. People v. Garcia, 752 P.2d 570 (Colo. 1988).   Subsection (1)(f) is not unconstitutionally vague or overbroad. Subjecting a narcotics offender to special offender sentencing because of the offender's possession of a deadly weapon is reasonably related to the government's legitimate interest in preventing crime, and constitutes a valid exercise of the state's police power and does not violate the right to bear arms in self-defense as protected in the Colorado constitution. People v. Atencio, 878 P.2d 147 (Colo. App. 1994).   Evidence showing that defendant had a loaded 9 millimeter handgun in a bedroom in close proximity to the drugs and to where the defendant was arrested established sufficient nexus between the deadly weapon and the offense. People v. Atencio, 878 P.2d 147 (Colo. App. 1994).   Term “deadly weapon” is not vague; it was not necessary for the prosecution to show that the defendant intended to use the handgun found in his bedroom as a deadly weapon. People v. Atencio, 878 P.2d 147 (Colo. App. 1994).   Ordinary and commonplace definitions of the terms “used,” “displayed,” “possessed,” or “available for use” provide fair notice of the conduct prohibited by subsection (1)(f) of this section. People v. Atencio, 878 P.2d 147 (Colo. App. 1994).   Pre-2010 version of subsection (1)(f) does not violate the right to bear arms. The United States and Colorado constitutions do not protect the unlawful purpose of possessing a firearm in furtherance of a drug offense. People v. Cisneros, , 356 P.3d 877 (decided under law in effect prior to the 2010 amendment).   Proximity of revolver to methamphetamine sufficient to establish its “availability for use” under the statute even if its trigger mechanism was secured by a padlock. People v. Martinez, 165 P.3d 907 (Colo. App. 2007).   Defendant violated pre-2010 version of subsection (1)(f) even if he fired his gun in self defense. Because defendant elected to deal drugs from his home and to keep a gun available for use in connection with that drug dealing in close proximity to his drug supply, he violated the special offender statute. People v. Cisneros, 2014 COA 49 , 356 P.3d 877 (decided under law in effect prior to the 2010 amendment).   Defendant charged with a level 1 drug felony pursuant to this section is entitled to a preliminary hearing pursuant to § 16-5-301 because special offender allegation affects the level of offense defendant is accused of and charged with. The right to the preliminary hearing does not depend on whether the special offender allegation is deemed an element or a sentence enhancer, and the fact that the legislature elected to set forth the special offender aggravating circumstances in a separate statute is of no consequence. People v. Vanness, 2020 CO 18, 458 P.3d 901 (overruling People v. Garcia, 176 P.3d 872 (Colo. App. 2007)).   Provisions of this section do not define substantive offenses, but rather merely represent sentence enhancement provisions which limit the sentencing discretion of the district court. Therefore the defendant is not entitled to a preliminary hearing. Felts v. County Court, 725 P.2d 61 (Colo. App. 1986); People v. Vega, 870 P.2d 549 (Colo. App. 1993) (decided under former § 18-18-107 ).   Since subsection (1) is a sentence-enhancing provision and does not create a separate criminal offense, it was not necessary for the trial court to instruct the jury as to a culpable mental state and it was sufficient for the jury to be given a special interrogatory. People v. Whitaker, 32 P.3d 511 (Colo. App. 2000), aff'd, 48 P.3d 555 (Colo. 2002); People v. Hopper, 284 P.3d 87 (Colo. App. 2011).   Defendant should not receive a separate sentence on the special offender count because section does not create a substantive offense. People v. Rios, 43 P.3d 726 (Colo. App. 2001).   Evidence that defendant brought a controlled substance from a foreign or external source into the state is sufficient evidence to convict defendant under subsection (1)(d). Because the statute uses the disjunctive “or”, defendant need not have intended both the importation and distribution of the substance in the state. People v. Montalvo-Lopez, 215 P.3d 1139 (Colo. App. 2008).   Prosecution was not required to prove that defendant “knew” the quantity of drugs he possessed or that defendant “knew” that he imported a controlled substance into Colorado to increase a defendant's sentence pursuant to this section. Whitaker v. People, 48 P.3d 555 (Colo. 2002).   When defendant convicted and sentenced on a separate charge as a special offender as a substantive offense in addition to the conviction and sentence upon the enhanced offenses, the conviction and sentence on the special offender charge must be vacated. People v. Martinez, 36 P.3d 201 (Colo. App. 2001).   The enhancement provision of § 18-18-405 (3) , as it previously existed, does not apply if an accused was found to be a special offender; defendant's sentence on a count cannot be enhanced twice. People v. Martinez, 36 P.3d 201 (Colo. App. 2001).   Defendant's drug conviction, as both a special drug offender under prior version of subsection (1) and as an habitual criminal, should have resulted in a prison sentence determined by the additional aggravating circumstances of this section. By using a formula that increases the sentence length without reclassifying the offense for which it is imposed, the legislature requires the application of two different sentence enhancing provisions when the special offender is also an habitual criminal, independently mandating sentence enhancement for different aggravating circumstances. Martinez v. People, 69 P.3d 1029 (Colo. 2003).   Neither this section nor the habitual criminal statute purports to limit the effect of additional aggravation or to place an upper limit on the ultimate sentence for a defendant to whom its provisions apply. Martinez v. People, 69 P.3d 1029 (Colo. 2003).   The plain language of the 1997 amendment to the introductory paragraph of subsection (1) shows that the general assembly gave sentencing courts discretion to impose a lower minimum sentence under this section than would in some circumstances be the minimum sentence under § 18-18-405 (3)(a) . People v. Coleman, 55 P.3d 817 (Colo. App. 2002).   The correct interpretation of subsection (2)(a) is that it requires a showing that the defendant intended to distribute the controlled substance to a person who was within, or on the grounds of, the school or public housing development. People v. Trusty, 53 P.3d 668 (Colo. App. 2001).   Assertion of an affirmative defense to a charge brought pursuant to this section is inappropriate. People v. Aponte, 867 P.2d 183 (Colo. App. 1993).   Bifurcated trial on special offender count not required. This section is not analogous to the habitual criminal statute but is instead analogous to the crime of violence sentence enhancement statute. Therefore a separate charge, a special interrogatory to the jury, and an instruction to the jury that the beyond a reasonable doubt burden of proof applies to the special offender count are required, but a bifurcated trial is not required in order to adequately accord the defendant procedural and constitutional safeguards. People v. Garcia, 752 P.2d 570 (Colo. 1988).   Nor is defendant entitled to a bifurcated trial under this section. People v. Vazquez, 768 P.2d 721 (Colo. App. 1988), cert. denied, 787 P.2d 174 (Colo. 1990).   This section does not require proof of a mental state. People v. Vazquez, 768 P.2d 721 (Colo. App. 1988), cert. denied, 787 P.2d 174 (Colo. 1990); People v. Pineda-Eriza, 49 P.3d 329 (Colo. App. 2001); People v. Hopper, 284 P.3d 87 (Colo. App. 2011).   Knowledge of the amount of illegal drugs involved is not required even if the defendant is convicted as a complicitor. Complicitor is held to the same level of culpability as a principal. Defendant convicted as a complicitor is subject to the enhanced penalties under the provisions of this section. People v. Ramirez, 997 P.2d 1200 (Colo. App. 1999), aff'd, 43 P.3d 611 (Colo. 2001).   Section as applied to defendant convicted as a complicitor does not violate federal or state constitutional due process rights. People v. Ramirez, 997 P.2d 1200 (Colo. App. 1999), aff'd, 43 P.3d 611 (Colo. 2001).   Imposition of a 20-year sentence was not an abuse of discretion where underlying offense was possession of four pounds of cocaine with intent to distribute and defendant had violated terms of probation imposed in previous drug-related murder case. People v. Garcia, 752 P.2d 570 (Colo. 1988).   Trial court's conclusion that the minimum mandatory enhanced sentence defendant could receive for possession with intent to sell a controlled substance was 24 years and one day was not abuse of discretion, statute was not ambiguous, and rule of lenity does not apply. People v. Pineda-Eriza, 49 P.3d 329 (Colo. App. 2001).   This statute constitutes a sentence enhancement provision which limits the trial court's sentencing discretion. People v. Delgado, 832 P.2d 971 (Colo. App. 1991).   Section does not permit a mandatory parole sentence in excess of that authorized for the underlying class of felony. The statute is a sentence enhancer that is not a reclassification of the underlying substantive offense. People v. Butler, 224 P.3d 380 (Colo. App. 2009); People v. Garcia, 251 P.3d 1152 (Colo. App. 2010).   Section 18-1-105 (10) allows the trial court only to suspend the imposition or execution of a sentence, not the length of the sentence, and in light of the mandatory language of this section, the trial court was required to sentence the defendant within the range set forth in the statute. People v. Delgado, 832 P.2d 971 (Colo. App. 1991).   This section mandates only the length of sentence which a special drug offender must receive, without altering the sentencing options otherwise within the court's discretion. The general assembly intended merely to increase the length of the sentence prescribed for each particular offense, rather than shifting discretion from the courts to the executive director of the department of corrections, regardless of the character and circumstances of the underlying offense. Shipley v. People, 45 P.3d 1277 (Colo. 2002).   No special verdict required. This statute is a presumptive penalty statute which requires no special verdict of special offender status by the jury and therefore affirmative defenses are not applicable and no determination of aggravating or mitigating factors are required. People v. Vega, 870 P.2d 549 (Colo. App. 1993) (decided under former § 18-18-107 ).   A bifurcated trial is not required under the special offender statute. People v. Vega, 870 P.2d 549 (Colo. App. 1993) (decided under former § 18-18-107 ).   Defendant not entitled to the ameliorative effects of amendatory legislation if the legislature has not indicated its intent to require retroactive application; thus trial court had no discretion to reduce defendant's sentence under an amended statute when legislation specified that the amendment applied only to offenses committed on or after a date that occurred after defendant committed his offense. People v. Pineda-Eriza, 49 P.3d 329 (Colo. App. 2001).   The evidence supported a conclusion that the knives were readily accessible for use by defendant with defendant's intended drug trafficking activity. People v. Tweedy, 126 P.3d 303 (Colo. App. 2005).   Jury instruction concerning special offender conviction was not misleading. The instructions contained the elements that the jury was required to find, although not in an elemental format. People v. Cisneros, 2014 COA 49 , 356 P.3d 877 (decided under law in effect prior to the 2010 amendment).