People v. Baca

• Decision Date: 22 October 2015
• Docket Number: Court of Appeals No. 12CA2342
• Citation: 2015 COA 153,378 P.3d 780
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Richard Arthur BACA, Defendant–Appellant.
• Court: Colorado Court of Appeals

378 P.3d 780

2015 COA 153

The PEOPLE of the State of Colorado, Plaintiff–Appellee

v.Richard Arthur BACA, Defendant–Appellant.

Court of Appeals No. 12CA2342

Colorado Court of Appeals, Div. I.

Announced October 22, 2015

Rehearing Denied December 17, 2015

Cynthia H. Coffman, Attorney General, Erin K. Grundy, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Mark Evans, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion by JUDGE HARRIS

¶ 1 Richard Arthur Baca was convicted of attempt to commit and conspiracy to commit second degree murder, attempted aggravated robbery, and false reporting, in connection with an armed robbery committed by his alleged fellow gang member, Casey Griego. Mr. Baca appeals the judgment of conviction on the grounds that the district court erred in using a faulty reasonable doubt analogy during voir dire and in excluding from evidence a recorded telephone call made by Mr. Griego. He appeals his sentence on the ground that the district court erred by applying the extraordinary risk statute in calculating his sentencing range.

¶ 2 We are not persuaded by Mr. Baca's challenges to his convictions and therefore affirm the judgment of conviction. As to his sentencing claim, we agree with Mr. Baca that the district court committed error. But because the district court relied on a published decision from this court in applying the extraordinary risk provision, on plain error review we are unable to conclude that the error was obvious. We therefore affirm his sentence as well.

I. Background

¶ 3 Mr. Griego attempted to rob a liquor store at gunpoint. After exchanging gunfire with the store's clerk, Mr. Griego was shot while fleeing the store. He was then transported to the hospital and arrested. Months later, Mr. Griego and his attorney met with authorities and told them that Mr. Baca had put him up to the robbery.

¶ 4 Mr. Baca was arrested and charged with, among other offenses, attempted first degree murder, attempted aggravated robbery, conspiracy to commit first degree murder, conspiracy to commit aggravated robbery, and two counts of committing a crime of violence.

¶ 5 At trial, Mr. Griego, who was friendly with Mr. Baca's son, testified that he met Mr. Baca for the first time on the day of the attempted robbery, and had spent much of the afternoon drinking and smoking marijuana with Mr. Baca and his son. According to Mr. Griego, it was Mr. Baca's idea to rob the liquor store. Mr. Griego tried to resist, but after Mr. Baca pressured him and called him a “bitch,” Mr. Griego relented. He maintained that Mr. Baca had provided the bandana and gun used in the attempted robbery.

¶ 6 Mr. Baca's defense was that Mr. Griego had committed the robbery not at Mr. Baca's behest, but as part of a gang initiation ritual. To be admitted to the Bloods gang, Mr. Griego had to “do something crazy” or, in gang terminology, “do some dirt.” And according to Mr. Baca, the armed robbery was the “dirt” required for Mr. Griego to join the Bloods.

¶ 7 The jury convicted Mr. Baca of attempted second degree murder, conspiracy to commit second degree murder, attempted aggravated robbery, and conspiracy to commit aggravated robbery for his role in planning and encouraging Mr. Griego's commission of the offense. The jury acquitted Mr. Baca of the crime of violence charges, finding, by way of a special verdict, that the prosecution had failed to prove that Mr. Baca used, or possessed and threatened the use of, a deadly weapon.

¶ 8 At sentencing, after applying both the crime of violence and the extraordinary risk sentencing provisions, the court calculated Mr. Baca's sentencing range at ten to thirty-two years. The court sentenced Mr. Baca to eighteen years' imprisonment.

II. Reasonable Doubt Voir Dire Comments

¶ 9 In a colloquy with potential jurors during the court's voir dire, the court explained:

In this case, the burden is beyond a reasonable doubt, the highest burden we have in our legal system, but what it doesn't say is proof beyond any doubt, because, I suppose, folks can have doubts about just about anything, including—I don't know how you got here. I suppose you drove.

When you got in your car this morning—we all read about these terrible things that happen when they're driving, either they make a mistake or somebody else does, and it ends up very tragic. That didn't stop you from making the decision to get up, turn your key, and come to work, and that didn't stop you to [sic] from coming here, did it?

THE JUROR: (Shakes head.)

THE COURT: I'm going to ask you to hold the prosecution to beyond a reasonable doubt. Can you do that?

THE JUROR: Yes.

¶ 10 Before the attorneys began their voir dire, the court read the pattern reasonable doubt instruction to the potential jurors. This instruction was read to the jury again at the close of evidence, and a written copy was provided in the jury's packet of instructions.

¶ 11 Mr. Baca contends that the court's reasonable doubt analogy violated his due process rights by lowering the prosecution's burden of proof and allowing the jury to convict on something less than proof beyond a reasonable doubt.

¶ 12 Mr. Baca failed to object to the court's comments. He asserts, however, that the comments constitute structural error, requiring automatic reversal. We do not agree and, instead, review for plain error. People v. Lee, 93 P.3d 544, 550 (Colo.App.2003) (rejecting contention that structural error review applied to claim of allegedly erroneous reasonable doubt instruction and applying plain error standard); see also People v. Carter, 2015 COA 24M, ¶ 51, ––– P.3d –––– (applying plain error review to allegation of erroneous reasonable doubt instruction). We reverse under this standard only if the error was obvious and “so undermined the fundamental fairness of the trial itself so as to cast serious doubt on the reliability of the judgment of conviction.” People v. Miller, 113 P.3d 743, 750 (Colo.2005) (quoting People v. Sepulveda, 65 P.3d 1002, 1006 (Colo.2003) ). An error in giving an improper jury instruction does not constitute plain error if the relevant instruction, read in conjunction with other instructions, adequately informs the jury of the law. Id .

¶ 13 We assume without deciding that the district court's comments on the reasonable doubt standard were improper and that the comments amounted to instructions. Even if the trial court's analogy was improper, however, we perceive no plain error, as the court's isolated comments do not cast doubt on the reliability of the judgment of conviction.

¶ 14 The court twice read the proper reasonable doubt instruction to the jury and provided it with a written copy. Considering the improper analogy in conjunction with the other reasonable doubt instructions, we conclude that the jury was adequately informed of the law, and we presume the jury followed these instructions. Copeland v. People, 2 P.3d 1283, 1288 (Colo.2000) (“Absent evidence to the contrary, we presume that the jury understood and heeded the trial court's instructions.”); see also Carter, ¶ 59 (stating that an improper analogy during voir dire was not reversible error where the court orally provided the proper reasonable doubt instruction twice and it was provided in written instructions); People v. Estes, 2012 COA 41, ¶ 12, 296 P.3d 189 (“[T]he risk of prejudice [from improper comments during voir dire] was mitigated by the court's written jury instructions and other statements correctly explaining the applicable burdens and presumptions, and we presume that the jury followed the court's instructions.”).

¶ 15 Mr. Baca relies on a number of cases from other jurisdictions to argue that the court's comments constitute reversible error. See, e.g., People v. Johnson , 119 Cal.App.4th 976, 14 Cal.Rptr.3d 780 (2004) ; Commonwealth v. Ferreira , 373 Mass. 116, 364 N.E.2d 1264 (Mass.1977). These cases, however, present far more extreme examples than the analogy at issue here. In Johnson, the court engaged in a lengthy colloquy with several prospective jurors, analogizing a series of different everyday decisions to reasonable doubt, and then told the prospective jurors that they would have to be “brain dead” if, at the end of trial, they had no doubts about the defendant's guilt. 14 Cal.Rptr.3d at 782. Similarly, in Ferreira, the court compared the reasonable doubt standard to the level of certainty people have when making economic and social decisions, encouraging the jurors to “weigh the pros and cons.” 364 N.E.2d at 1272. Unlike the instructions in Johnson and Ferreira, the comments at issue here were brief, made in passing, and followed shortly by the correct reasonable doubt instruction.

¶ 16 Therefore, the court's comments on reasonable doubt do not require reversal.

III. Admission of Recorded Telephone Call

¶ 17 To bolster his theory of defense, Mr. Baca sought to introduce a recorded telephone call between Mr. Griego, who was in jail awaiting sentencing in his case, and Mr. Griego's mother, in which Mr. Griego apparently admitted that he had “done his dirt” to become a Blood. Mr. Baca attempted to introduce the call during testimony from Mr. Griego and, when that proved unsuccessful, during the testimony of a defense investigator, but the court ultimately excluded the recording. Mr. Baca contends the court abused its discretion in refusing to admit the telephone call.

¶ 18 We review evidentiary rulings, including foundation and authentication rulings, for an abuse of discretion. People v. Bernard, 2013 COA 79, ¶ 8, 305 P.3d 433. The parties disagree on the proper standard to apply in the event of an error—Mr. Baca says constitutional harmless error and the People say plain error—but we need not settle that dispute because we discern no error by the district court.

A. Introduction of Recording During Testimony of Mr. Griego

¶ 19 Defense counsel initially attempted to introduce the call during Mr....