Colorado’s second-highest court on Thursday determined a woman convicted of killing an elderly man in Denver must be resentenced for a less-serious offense to avoid a violation of her constitutional rights.

Stephanie Martinez did not dispute that she was responsible for the death of George Black, 80, who she attacked in May 2020 at the state Capitol. Jurors acquitted her of first-degree murder, but instead convicted her of criminally negligent homicide of an at-risk person. She received a sentence of 14 years in prison.

On appeal, Martinez asserted a violation of her constitutional right to due process. Specifically, criminally negligent homicide is a lesser offense of first-degree murder. But committing that offense against an at-risk person — which increases the felony level and the corresponding prison sentence — is an extra element.

A three-judge panel for the Court of Appeals considered whether Martinez was correct that prosecutors needed to actually charge her with killing an at-risk person in order to sustain a conviction for killing an at-risk person. Or was the prosecution correct that the lack of a formal charge did not matter because it was undisputed Martinez’s victim, by nature of his age, was an at-risk person?

The panel sided with Martinez.

“Our system of criminal justice does not condone forcing a defendant to guess the charges the defendant will face at trial,” wrote Judge Lino S. Lipinsky de Orlov in the April 11 opinion. “Due process protects a defendant not only from surprise regarding evidence offered at trial, but also from surprise regarding the charges for which she is prosecuted, so she can tailor her defense and trial strategy appropriately.”

Consequently, the panel overturned Martinez’s conviction for the class 4 felony of causing the death of an at-risk adult and ordered her resentenced to the class 5 felony of criminally negligent homicide, with a maximum sentence of six years.

After Martinez attacked Black and caused him to suffer a fatal heart attack, prosecutors charged her with first-degree murder after deliberation and extreme indifference murder. Both offenses are punishable by life in prison. Neither crime references the age of the victim.

At trial, Martinez argued she was instead guilty of criminally negligent homicide, a lesser offense, and asked District Court Judge Jay S. Grant to give jurors the corresponding instruction. On the last day of trial, the prosecution requested Grant also ask the jury to determine Martinez committed criminally negligent homicide against an at-risk person.

The defense objected, arguing the prosecution never charged that offense, that it did not fall under first-degree murder because of the extra element of the victim’s age, and the last-minute change affected Martinez’s “trial strategy.”

“The Court of Appeals may disagree with me,” Grant said, but because the defense asked for the jury to consider lesser-included offenses to murder, he would give them the at-risk person instruction.

After her conviction, Martinez argued her constitutional right to due process required notice of the criminal charges — of which criminally negligent homicide of an at-risk person was not one. The government countered that there was no question Martinez knew heading into trial her victim was an at-risk person.

Martinez did know that, Lipinsky acknowledged in the appellate panel’s opinion. But the problem was the prosecution’s charging document did not indicate Martinez faced any charge for which the age of her victim was an essential component.

“In other words, the key question is not whether Martinez knew Black’s at-risk status; rather, it is whether she knew she was being prosecuted for a crime based on that status,” he wrote. 

He added that if the prosecution believed the evidence justified a conviction for criminally negligent homicide against an at-risk person, “it should have included that offense” in the charges.

The panel ordered a new sentence for Martinez on the less-serious felony. It upheld her other conviction for assaulting a police officer.

A spokesperson for the Denver District Attorney’s Office said prosecutors were reviewing the ruling and would decide whether to appeal to the Supreme Court.

The case is People v. Martinez.