Most of the attention for Wednesday's fourteen arrests in a Colfax prostitution sweep has focused on Darren Garcia, who presents herself as a woman and is HIV-positive. Garcia's eight previous busts include two for the crime of prostitution with the knowledge of AIDS, and she was convicted of a felony in the latter instances -- the most recent in 2009. So why was she back on the streets again?
Garcia was reportedly busted for prostitution with the knowledge of AIDS for the first time in Denver in 2007 and received an eighteen-month sentence. Nonetheless, she was arrested on the same charge in November 2009. According to information in the Westword post linked above, she offered to perform sexual acts for $50, and at the time of her arrest, she was found to have crack cocaine in her possession, leading to a second felony charge, possession of a controlled substance. But she served only six months behind bars that time around.
Why a lesser sentence for a second conviction of a crime listed as a felony because it potentially endangers the lives of others? Denver District Attorney's Office spokeswoman Lynn Kimbrough provides some background.
"A regular prostitution arrest is usually done as a city ordinance violation," she says. "But prostitution with the knowledge of AIDS is a class-five felony, with a presumptive sentencing range of up to three years in prison."
In both instances, though, Garcia wasn't convicted of this act. Instead, she pleaded guilty to attempted prostitution with the knowledge of AIDS, a class-six felony that can net up to eighteen months in a Department of Corrections facility, or half as much as a class-five felony.
As such, Garcia received the maximum sentence for a class-six felony for the 2007 conviction, but only six months for the same crime two years later. Why? Kimbrough doesn't have the answer to that question. But she points out that a second offense doesn't automatically carry an increase in sentencing severity.
Things could be different now. "This is [her] third arrest, and if [she's] convicted of a felony, it would be [her] third within ten years," she says. "If that happens, [she] could face being labeled a habitual criminal."
This designation is important. If Garcia is found guilty of being a habitual criminal, "the sentencing range triples," Kimbrough points out. "So if [she's] convicted of a class-five felony, the judge could consider a sentence of up to nine years in prison."
No guarantee that will happen. The case hasn't been presented to the DA's office yet -- it's likely to be submitted next week -- and once it arrives, "we have to make sure it meets the filing criteria. Every case has to stand on its own merits, even though [she's] got two prior events. We have to decide if we think we can prove any new charge beyond a reasonable doubt separate and apart from [her] criminal history."
That leaves a multitude of options. Garcia could either be out of commission for the better part of a decade, or she could be free -- and possibly back on Colfax -- much sooner than that.
Look below to see Garcia's 2009 booking photo, followed by her latest mug shot.
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