specially concurring:
I agree with the majority that the district court properly determined that the prosecution could not seek the death penalty against Aguayo and Dennis. However, in my view, we need not revisit the applicability of the doctrine of revival and the ex post facto clause. I also write separately to emphasize my view that the death penalty is unavailable for crimes committed during the window period between the declaration of the death penalty sentencing statute’s unconstitutionality in People v. Young, 814 P.2d 834 (Colo.1991) and the re-enactment of the death penalty by the General Assembly. During that period, no valid death penalty sentencing statute was in effect.
On July 9, 1991, we declared section 16-11-103, 8A C.R.S. (1988 Supp.) (the “1988 statute”) unconstitutional. At that point, there was no procedure for obtaining a death sentence under the 1988 statute. On September 20, 1991, the General Assembly repealed and reenacted the death penalty sentencing statute with amendments. § 16-11-103, 8A C.R.S. (1992 Supp.).
Individuals who committed crimes during the window period were on notice that no valid death penalty sentencing statute existed in Colorado. The defendants in this case, who allegedly committed first-degree murder on July 30, 1991, clearly fall within the window period. Under section 18—1—105(4), 8B C.R.S. (1992 Supp.), the only available penalty for individuals who committed class 1 felonies during the window period was life imprisonment.
This court previously addressed the applicability of the doctrine of revival and the ex post facto clause to section 16-11-801 and section 16-11-802 in People v. District Court, 834 P.2d 181 (Colo.1992). Those issues need not be revisited in this case.