People v. Delgado

• Decision Date: 30 September 2019
• Docket Number: Supreme Court Case No. 17SC29
• Citation: 450 P.3d 703
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Johnny Guillermo DELGADO, Respondent.
• Court: Colorado Supreme Court

450 P.3d 703

The PEOPLE of the State of Colorado, Petitioner,

v.Johnny Guillermo DELGADO, Respondent.

Supreme Court Case No. 17SC29

Supreme Court of Colorado.

September 30, 2019

Attorneys for Petitioner: Philip J. Weiser, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado

Attorneys for Respondent: Megan A. Ring, Public Defender, Elizabeth Griffin, Deputy Public Defender, Denver, Colorado

En Banc

JUSTICE HOOD delivered the Opinion of the Court.

¶1 Unable to gain access to a closed bar by banging on the door, R.B. headed elsewhere. He didn't get far. As he began to leave, he was knocked unconscious from behind. He awoke with his belongings gone and the police in pursuit of a man seen fleeing the scene. That man was Johnny Delgado.

¶2 The police caught Delgado, who was eventually convicted of both theft from a person and robbery based on a single taking. But theft from a person is the unlawful taking of an item without force, and robbery is the unlawful taking of an item with force. Thus, based on the elements, it appears that Delgado was both convicted and absolved of taking R.B.'s belongings without force. And he was both convicted and absolved of taking R.B.'s belongings with force.

¶3 Can these verdicts be legally and logically reconciled? Like the division of the court of appeals below, we conclude that they cannot. Elements of the two convictions are mutually exclusive. It's impossible for Delgado to have unlawfully taken items from R.B. by force and also by means other than force when there was only one taking alleged.

¶4 So, what's the remedy? The People argue that, even if the verdicts are mutually exclusive, the cure is to maximize the convictions by throwing out the lesser theft-from-a-person conviction. Delgado counters that double jeopardy requires striking both convictions. The division below took a middle ground and concluded that, here, the solution is a new trial.

¶5 Again we agree with the division. We hold that, because the elements of theft from a person and robbery negate each other when they are based on a single taking, a defendant may not be convicted of both offenses. Because such mutually exclusive convictions leave us without a meaningful way to discern the jury's intent, the proper remedy is a new trial. Accordingly, we affirm the judgment of the court of appeals.

I. Facts and Procedural History

¶6 Late one evening, R.B. banged on the door of a closed bar, apparently to gain entry. While unsuccessful, he managed to disturb the staff inside the bar. They called the police. Shortly after banging on the door, R.B. was attacked from behind, and he lost consciousness.

¶7 Within minutes, an officer arrived at the bar. As he arrived, that officer saw a man—later discovered to be Delgado—rummaging through the pockets of R.B., who was lying down. Delgado stood and walked away carrying several items. The officer yelled for Delgado to stop, but Delgado bolted down an alley instead. Other officers gave chase. During the chase, Delgado dropped several items. The officers quickly caught and arrested Delgado, and they found R.B.'s phone, wallet, and keys on the ground nearby.

¶8 Delgado was subsequently charged with robbery and theft from a person. A jury convicted him on both counts. (The jury was unable to reach a verdict as to a misdemeanor assault charge, so the district attorney dismissed that charge.)

¶9 A division of the court of appeals reversed. Seizing on language from our decision in People v. Frye , 898 P.2d 559 (Colo. 1995), it reasoned that essential elements of robbery and theft from a person logically negate each other. People v. Delgado , 2016 COA 174, ¶¶ 19–21, 410 P.3d 697, 700. More specifically, the division reasoned that because "force" has the same definition in both the robbery and theft-from-a-person statutes, Delgado couldn't have taken R.B.'s belongings both "by the use of force" (as required for robbery) and "by means other than the use of force" (as required for theft from a person). See id. at ¶ 21, 410 P.3d at 700. The division additionally concluded that the error was plain because the rule preventing mutually exclusive convictions is "well-established" and there could "be no clearer example of inconsistency" than between these elements of theft from a person and robbery. Id. at ¶ 23, 410 P.3d at 701.

¶10 As for the remedy, the division disagreed with both the People and Delgado. See id. at ¶¶ 24, 27, 410 P.3d at 701–02. The People asked the division to maximize the jury's verdicts by sustaining the robbery conviction, id. at ¶ 27, 410 P.3d at 701, while Delgado requested that the division throw out both convictions, id. at ¶ 34, 410 P.3d at 702. The division reasoned that it couldn't possibly know what the jury was thinking because it "expressed irreconcilable findings," making maximization inappropriate. Id. at ¶ 32, 410 P.3d at 702. And it equally disagreed with Delgado's contention that he was acquitted of both crimes because each verdict contained an affirmative finding that necessitated acquittal on the other count. Id. at ¶ 34, 410 P.3d at 702. Rather, the division noted that such reasoning could just as easily lead it to conclude that both verdicts included findings of conviction, rather than acquittal. Id. So, it concluded that the correct remedy is a new trial. Id. at ¶ 33, 410 P.3d at 702.

¶11 We granted the People's petition for certiorari.¹

II. Analysis

¶12 After briefly discussing the standard of review, we address the proper framework for dealing with mutually exclusive guilty verdicts. We conclude that, when essential elements of two guilty verdicts logically negate each other, they are mutually exclusive. Here, the robbery and theft-from-a-person convictions do exactly that. Therefore, Delgado may not be convicted of both. We then analyze whether this error was plain. We conclude that it was, given the stark differences between the elements of theft from a person and robbery. Finally, we examine the proper remedy for mutually exclusive guilty verdicts. Because it is impossible to know exactly what the jury intended, the remedy is a new trial.

A. Standard of Review

¶13 Whether verdicts are mutually exclusive is a question of law. Therefore, we review this issue de novo. See Lucero v. People , 2012 CO 7, ¶ 19, 272 P.3d 1063, 1065 (citing Montez v. People , 2012 CO 6, ¶ 7, 269 P.3d 1228, 1230 ). Unpreserved constitutional errors, such as the one here, are reviewed for plain error. See People v. Miller , 113 P.3d 743, 748–49 (Colo. 2005). An error is plain when it is "obvious and substantial," id. at 750 (quoting People v. Stewart , 55 P.3d 107, 120 (Colo. 2002) ), and "so undermine[s] the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction," Hagos v. People , 2012 CO 63, ¶ 18, 288 P.3d 116, 120 (quoting Wilson v. People , 743 P.2d 415, 420 (Colo. 1987) ).

B. Mutually Exclusive Guilty Verdicts

¶14 This court has not yet directly confronted how to analyze mutually exclusive guilty verdicts. We made it clear in Frye that it isn't necessary for a guilty verdict and a not -guilty verdict to be consistent. See 898 P.2d at 571 (holding that "consistency in [guilty and not-guilty] verdicts is unnecessary"). But as the parties and division below note, in Frye , we at least suggested how cases such as the one before us now might be handled. See id . at 569 n.13 (observing that "courts are generally uniform in their agreement" that mutually exclusive guilty verdicts "should not be sustained").

¶15 The facts of Frye , though disturbing, are straightforward. Ronald Frye raped the victim, referred to as Doe, while pointing a gun at her head. Id. at 561. Frye was charged with first degree burglary, second degree burglary, sexual assault in the first degree, and menacing with a deadly weapon. Id. at 560–61. Before the jury deliberated, the trial court instructed the jury on the lesser included offense of second degree sexual assault. Id. at 564. The jury ultimately found Frye guilty of that offense and menacing with a deadly weapon, which implied that Frye was not guilty of first degree sexual assault. Id.

¶16 The problem was that sexual assault in the first degree and menacing with a deadly weapon included similar elements. Sexual assault in the first degree required causing the submission of the victim "through the actual application of physical force, physical violence, or ... by threat of imminent death, serious bodily injury, [or] extreme pain." Id. at 563. Menacing with a deadly weapon required placing the victim in "fear of imminent serious bodily injury." Id. We concluded "that only by a most strained analysis could the two guilty verdicts be held to be consistent." Id. at 565.

If the jury had believed that Frye used a gun to cause Doe's submission, it would logically have found him guilty of first degree sexual assault. Therefore, a verdict of not guilty of first degree sexual assault but guilty of second degree sexual assault suggests that the jury found that Frye did not use a gun to cause Doe to submit. Such a finding would be at odds with the guilty verdict for menacing with a deadly weapon because there is no evidence that Frye used the gun other than in the course of the sexual assault.

Id. (citation omitted). To find consistency in the two verdicts, we noted that we would have had to determine that the jury didn't believe Doe's testimony that Frye used a gun during the commission of the sexual assault, but did believe that Frye used it at some other point. See id. at 566. We rejected such an "implausible explanation" and concluded that the verdicts were inconsistent. Id. Despite this, we followed the federal rule and allowed both verdicts to stand so long as the evidence supported both convictions because it was impossible to determine why the jury convicted on one count and acquitted on the other. Id. at 570–71.

¶17 The People argue that we should analyze the inconsistency...