People v. Fuentes-Espinoza, No. 08CA1231.

• Docket Nº: No. 08CA1231.
• Citation: 417 P.3d 818
• Case Date: January 17, 2013
• Court: Court of Appeals of Colorado

417 P.3d 818

The PEOPLE of the State of Colorado, Plaintiff–Appellee,
v.
Bernardino FUENTES–ESPINOZA, Defendant–Appellant.

No. 08CA1231.

Colorado Court of Appeals, Div. II.

Jan. 17, 2013.

417 P.3d 820

John W. Suthers, Attorney General, John T. Lee, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Ned R. Jaeckle, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion by Judge BERNARD.

¶ 1 Defendant, Bernardino Fuentes–Espinoza, was charged with, and convicted of, transporting seven passengers in violation of Colorado's human smuggling statute, section 18–13–128, C.R.S.2012. None of these alleged passengers was available to testify at trial, and the prosecution did not establish whether any of them was illegally present in the United States.

¶ 2 On appeal, defendant asks us to decide two issues regarding Colorado's human smuggling statute. First, is the statute preempted by federal immigration law? Second, does the statute require the prosecution to prove, beyond a reasonable doubt, that the person being smuggled was illegally present in the United States? We answer both of these questions "no."

¶ 3 We also disagree with defendant's three other contentions. As a result, we affirm.

I. Analysis

A. The Trial Court's Jurisdiction Was Not Preempted by Federal Law

¶ 4 Defendant argues that Colorado's human smuggling statute is preempted by federal law. He concedes that he did not preserve this issue for appellate review by presenting it to the trial court.

¶ 5 Defendant contends, however, that federal preemption of a criminal statute provides a jurisdictional bar to prosecution that cannot be waived. See State v. Perry, 83 Ohio St.3d 41, 697 N.E.2d 624, 627 (1998) (stating in dicta that "preemption is a jurisdictional bar to prosecution").

¶ 6 Our supreme court has not addressed whether federal preemption is a jurisdictional—and therefore a nonwaivable—defense. See Town of Carbondale v. GSS Props., LLC, 169 P.3d 675, 683 (Colo.2007) (addressing state preemption of local law, but recognizing "that preemption involving federal law may raise a separate set of issues"). Nevertheless, GSS Properties identified a useful framework that has been employed by courts considering federal preemption.

Courts considering the matter have held that the waivability of a preemption defense depends entirely on the nature of the alleged preemption. If, as in most cases, the alleged preemption would simply alter the applicable substantive law governing the case, then preemption is waivable....

Conversely, if preemption "affects the choice of forum rather than the choice of law," then preemption is akin to a jurisdictional challenge and therefore is not waivable.

Thus, the United States Supreme Court in International Longshoremen's Association held that preemption was not waivable because the federal statute in question preempted state law and provided that federal courts were the exclusive fora for litigating claims under the statute.

GSS Properties, 169 P.3d at 682 (citations omitted) (quoting Gorman v. Life Ins. Co. of N. Am., 811 S.W.2d 542, 545–46 (Tex.1991) ).

¶ 7 International Longshoremen's Ass'n v. Davis, 476 U.S. 380, 106 S.Ct. 1904, 90 L.Ed.2d 389 (1986), addressed preemption of state jurisdiction by the National Labor Relations Act (NLRA), citing San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). The Court held that

when a state proceeding or regulation is claimed to be pre-empted by the NLRA under Garmon, the issue is a choice-of-forum rather than a choice-of-law question. As such, it is a question whether the State or the Board has jurisdiction over the dispute.

417 P.3d 821

If there is pre-emption under Garmon, then state jurisdiction is extinguished.

Int'l Longshoremen's Ass'n, 476 U.S. at 391, 106 S.Ct. 1904. Having concluded that the issue involved jurisdictional preemption, the Court further held that "when a claim of Garmon pre-emption is raised, it must be considered and resolved by the state court," state procedural rules notwithstanding. Id. at 393, 106 S.Ct. 1904.

¶ 8 Significantly, the Court emphasized that not all preemption claims are necessarily jurisdictional:

We note that this conclusion derives from congressional intent as delineated in our prior decisions. Thus, our decision today does not apply to pre-emption claims generally but only to those pre-emption claims that go to the State's actual adjudicatory or regulatory power as opposed to the State's substantive laws. The nature of any specific pre-emption claim will depend on congressional intent in enacting the particular preempting statute.

Id. at 391 n. 9, 106 S.Ct. 1904.

¶ 9 This distinction leads us to conclude that the GSS Properties framework can be applied to issues of federal preemption. Therefore, we must determine whether the preemption argument urged by defendant is jurisdictional—affecting choice of forum—or substantive—affecting choice of law. To the extent that defendant's argument involves jurisdictional preemption, we must address it.

¶ 10 Conversely, we conclude that defendant's arguments regarding substantive preemption are not properly before us. People v. Cagle, 751 P.2d 614, 619 (Colo.1988), holds generally that "[it] is axiomatic that this court will not consider constitutional issues raised for the first time on appeal." Our supreme court cited Cagle for this proposition as recently as two years ago. Martinez v. People, 244 P.3d 135, 139 (Colo.2010) (declining to reach an argument based on the Colorado Constitution because it was not raised below).

¶ 11 The supreme court has also stated that it will not address the constitutionality of a statute if such an attack "is not presented to the trial court and is [instead] raised for the first time on appeal." People v. Lesney, 855 P.2d 1364, 1366 (Colo.1993) ; accord People v. Martinez, 634 P.2d 26, 32 (Colo.1981). However, the supreme court has also held that, in certain circumstances, it will review unpreserved constitutional challenges to statutes to "promote efficiency and judicial economy." Hinojos–Mendoza v. People, 169 P.3d 662, 667–68 (Colo.2007) ; see also People v. Wiedemer, 852 P.2d 424, 433 n. 9 (Colo.1993).

¶ 12 Divisions of this court are split on when to review unpreserved constitutional errors. For example, as the majority in People v. Tillery, 231 P.3d 36, 47–48 (Colo.App.2009), aff'd on other grounds sub nom. People v. Simon, 266 P.3d 1099 (Colo.2011), points out, some divisions have declined to consider unpreserved double jeopardy claims, while others have proceeded to do so by applying plain error principles.

¶ 13 Some divisions review unpreserved constitutional attacks on statutes that they conclude can be determined by referring to the existing record, but they decline to review others that would require a more fully developed record to resolve. People v. Devorss, 277 P.3d 829, 834 (Colo.App.2011) ; People v. Greer, 262 P.3d 920, 929–30 (Colo.App.2011).

¶ 14 Other divisions have simply declined to review unpreserved constitutional attacks on statutes. People v. Baker, 178 P.3d 1225, 1235 (Colo.App.2007) ; People v. Shepherd, 43 P.3d 693, 701 (Colo.App.2001) ; People v. Boyd, 30 P.3d 819, 820 (Colo.App.2001).

¶ 15 At least two judges have written separately to express their differing views about when and how unpreserved attacks on the constitutionality of statutes should be reviewed on appeal. Greer, 262 P.3d at 933–37 (J. Jones, J., specially concurring); Tillery, 231 P.3d at 55–56 (Bernard, J., specially concurring).

¶ 16 We are persuaded by Lesney and Cagle, and so we conclude that we will not consider the unpreserved constitutional attack on the statute in this case involving substantive preemption. See Tillery, 231 P.3d at 55 (Bernard, J., concurring) ("plain error review in Colorado does not encompass

417 P.3d 822

unpreserved constitutional attacks on statutes").

¶ 17 However, we recognize that the dissent in this case relies on reasonable authority when it proceeds to address the issue that we decline to consider. Because different divisions of this court continue to resolve this question differently, it is our respectful hope that our supreme court will resolve this dispute in the near future.

1. Jurisdictional Versus Substantive Preemption in the Context of Immigration Law

[W]hether Congress has preempted state court jurisdiction is not to be confused with whether it has preempted state legislative action. The former involves only the question whether a state court has the power to entertain a particular cause; the latter involves the further question whether a state may enact substantive legislation governing the subject matter of the particular cause.

In re Jose C., 45 Cal.4th 534, 87 Cal.Rptr.3d 674, 198 P.3d 1087, 1095 (2009) (emphasis in original).

a. Jurisdictional Preemption

¶ 18 Congress has granted federal courts jurisdiction over criminal matters relating to immigration. See 8 U.S.C. § 1329 ("The district courts of the United States shall have jurisdiction...