PEOPLE v. SMITH (1999)

Pursuant to C.A.R. 21, the People (State) brought this original proceeding seeking our review of a ruling of the District Court of the Eleventh Judicial District (trial court).   The trial court dismissed one of two criminal counts against the defendant below, Dennis Smith (respondent), an inmate in the custody of the Department of Corrections.¹  Respondent was charged with possession of contraband in the first degree,² a class 6 felony (possession count), and unlawful use of marijuana,³ a class 2 petty offense (use count).   At the preliminary hearing, the trial court found that, because the only evidence supporting the possession count was the evidence of use, there was no probable cause on the possession count.   The trial court then dismissed the possession count.

The State petitioned this court and we issued our rule to show cause why the trial court ruling should stand.   The State contends that the trial court erred in dismissing the possession count because the only possible inference from the evidence of voluntary use of the marijuana is that the respondent possessed contraband.   We agree with the State's contention.   In light of our holding in People v. Villapando, 984 P.2d 51 (Colo. June 28, 1999), addressing this very issue, we make our rule absolute and direct the trial court to reinstate the possession count.

In rendering its decision, the trial court relied upon People v. District Court of the Eleventh Judicial District, 964 P.2d 498 (Colo.1998) (District Court I ).   There, we held that the trial court erred when it exceeded the scope of the preliminary hearing by using that hearing for purposes other than deciding whether there was probable cause to support the offenses charged.   Specifically, the trial court used the preliminary hearing to determine whether there was a distinction between the offenses of unlawful use and unlawful possession of a controlled substance, see §§ 18-18-404(1)(a) and 18-18-405(1)(a), 6 C.R.S. (1998), without resolving the primary issue of probable cause.  964 P.2d at 500.   We also held that the two offenses were distinct and not identical, and therefore, that charging a defendant with both crimes did not violate equal protection, as the defendant claimed.   See id.   In so doing, however, we stated that “proof of the elements of the unlawful use offense does not establish the elements of the unlawful possession offense.”  Id. at 501.   It is that statement in District Court I that the trial court here relied upon in reaching its ruling, which is the issue of this appeal.

In our most recent case, Villapando, 984 P.2d 51 we reviewed our decision in District Court I. There, we reaffirmed our holding that addressing the distinction between charged offenses on equal protection grounds is beyond the scope of a preliminary hearing.   See id. at 54. We also overruled District Court I insofar as it stated that evidence of use did not constitute evidence of possession.   We concluded that:

[W]hile an individual may unlawfully possess a controlled substance without voluntarily using it, it is simply not feasible for an individual to voluntarily use a controlled substance without also possessing it.   Accordingly, we now conclude that our analysis of the equal protection claim in District Court I is incorrect because it rested upon the false notion that voluntary use does not assume possession.

Villapando, at 54.

Here, the evidence presented at the preliminary hearing was that the respondent tested positive for marijuana and that he was in the custody of the Department of Corrections on the date of the offense.   Therefore, based on our precedent in Villapando, we conclude that there was probable cause to believe that respondent committed the crime of possession of contraband.   The evidence was undisputed that respondent tested positive for marijuana and was in the custody of the Department of Corrections.   While this evidence may or may not also support a charge of unlawful use, see Villapando, at 55 n. 5, evidence of use, pursuant to our holding in Villapando, assumes possession.

Accordingly, we make our rule absolute and remand this matter to the trial court with directions to reinstate the possession of contraband charge against respondent.

FOOTNOTES

1.   Effective January 1, 1999, we amended C.A.R. 21, setting forth new procedures for matters in which we exercise our original jurisdiction.   Among other changes under our amended rule, such cases “shall be titled, ‘In Re [Caption of Underlying Proceeding].’ ”  C.A.R. 21(e).   Moreover, under the amended C.A.R. 21, a petitioner seeking “a rule to show cause” is to identify a “proposed respondent [who] should be the real party in interest.”   C.A.R. 21(b).   While this matter was initiated prior to the effective date of the amendments to our rule, we issue this opinion in accordance with our amended rule.   Therefore, for purposes of this opinion we treat Smith as the real party in interest, even though he did not file a responsive pleading.

2.   See § 18-8-204.1, 6 C.R.S. (1998).

3.   See § 18-18-406(3)(a)(I), 6 C.R.S. (1998).

Justice SCOTT delivered the Opinion of the Court.