Prosecutors have added a habitual offender count to the charges brought in the Angie Zapata murder case. A judge ruled that the case should proceed to trial at a September 18 arraignment. A jury trial is set to begin April 14, 2009.
The habitual offender count implies that prosecutors believe that the Defendant has been "three times previously convicted" of felonies, "upon charges separately brought and tried, and arising out of separate and distinct criminal episodes." See Section 18-1.3-801, Colorado Revised Statutes. Felony drug offenses that would be misdemeanors under current Colorado law are excluded. This is known in criminal justice circles as the "bitch."
The case has attracted national attention because Angie Zapata, age 18, was a transgender women, born male but living as a female, an identity she had held since age twelve. The defendant's discovery of her transgender status, following a consentual sexual encounter, is alleged to be the main reason for the murder.
The habitual offender count has the effect of lengthening any sentence imposed four fold. If the conviction is for murder (including heat of passion murder) the sentence would be life in prison with a possibility of parole after forty years.
Given the Defendant's age, 32, there is little difference between a forty years to life sentence as a habitual offender for heat of passion murder, and a life without parole sentence as a result of a first degree murder conviction (presumably for felony murder because he allegedly stole Zapata's car immediately after killing Zapata).
Given the fact that the defendant has reputedly confessed to, at least, heat of passion murder, was taped making incriminating statements in a telephone call to his girlfriend from jail, and that he is linked by some physical evidence through possession of the victim's car to the crime, it will be very difficult, absent any successful claim of an improperly obtained confession or improperly gathered evidence, for him to escape conviction and a life sentence.
The habitual offender count also means that even if he is convicted only of a lesser charge, such as felony car theft or felony identity theft, he could easily spend more than a decade in prison.
The charge also makes almost any plea deal that drops the habitual offender count and the first degree murder count, or drops the murder counts entirely even without dropping the habitual offender count, more attractive than going to trial.
While Colorado's habitual offender statutes are stiff, they are modest compared to those of California, where the California three strikes and your out law produced one of the few cases where a non-capital sentence has been held to violate the 8th Amendment protection against cruel and unusual punishments under the constitution.
In the California case, a sex offender's conviction for failing to complete a change of address form within five days of his birthday (he was acquitted of a parallel failure to register within a year of a change of address, and the evidence at trial revealed that parole officers actually did know where he lived even though he didn't register formally), drew a 28 years to life sentence. The plea bargain he has been offered was two years in prison, a fact notable for the indication it gives of how serious prosecutors felt the case was to them.
A comparable conviction in Colorado probably wouldn't have been eligible for habitual offender status at all (he had three prior convictions, at least one of which was more than ten years old), and would have produced a nine year sentence, rather than a life term, if the convictions had been recent enough.
Other cases involving California's three strikes and you're out statute have sent individuals to prison for life for what amount to shoplifting charges.
Other Colorado Habitual Offender Provisions
In addition to Colorado's four fold habitual offender sentence awarded to those with three prior felonies who commit another felony, Colorado has at least three other habitual felony offender provisions.
One imposes a 40 years to life sentence for someone with two prior convictions for Class 1 (first degree murder or first degree kidnapping), Class 2 (e.g. ordinary murder or drug kingpin drug dealing) or Class 3 felonies that are crimes of violence (like heat of passion murder or a serious aggravated assault), who are again convicted of such serious crimes.
Another imposes a three fold sentence one an offender with two prior convictions of felonies punishable by three or more years in prison, within the past ten years.
A third imposes a double sentence for an offender convicted of aggravated burglary with a prior aggravated burglary conviction within the past ten years.
Footnote On Timing
The speed with which very serious criminal cases like this one progress is notable. The murder took place on July 15, 2008, and was discovered two days later. Thirteen days after the murder was discovered, there was an arrest. Pre-trial dismissal for lack of evidence was ruled out less than two months after the discovery of the body. Yesterday's added count comes five months after the arrest. It is likely that a trial will be commence, or that a plea bargain will be struck, within nine months of the murder. A sentencing hearing could be completed within a year of the murder.