People v. Fuentes

• Decision Date: 20 January 2011
• Docket Number: No. 07CA1877.,07CA1877.
• Citation: 258 P.3d 320
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee,v.Andrew Gabriel FUENTES, Defendant–Appellant.
• Court: Colorado Court of Appeals

258 P.3d 320

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Andrew Gabriel FUENTES, Defendant–Appellant.

No. 07CA1877.

Colorado Court of Appeals, Div. I.

Jan. 20, 2011.

John W. Suthers, Attorney General, Majid Yazdi, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.Douglas K. Wilson, Colorado State Public Defender, Kathleen A. Lord, Deputy State Public Defender, Jason C. Middleton, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.Opinion by Judge CASEBOLT.

The main issue in this criminal case is whether defendant, Andrew Gabriel Fuentes, can be convicted of two counts of first degree burglary when he committed only one unlawful entry but assaulted two people. Because we conclude that burglary is an offense against property and that the General Assembly intended the additional element of assault in the first degree burglary statute to modify and aggravate the crime of burglary and not to change the gravamen of it, we vacate defendant's conviction for one count of first degree burglary and remand for correction of the mittimus. We affirm defendant's convictions for the remaining count of first degree burglary and for third degree assault.

I. Background

C.M. and her daughter, N.M., were at their home one evening entertaining friends and family. In the early morning hours, defendant and another man, Jesus Sierra, forced their way into the home through the front door and began swinging their fists. After one of the guests in the home managed to push the men outside, the fight continued in the street in front of the home. The fight involved, on one side, a group consisting of C.M., N.M., and some of their guests, and, on the other side, a group consisting of defendant, Sierra, and four others. Defendant's group had arrived together in a van, which was parked on the street opposite the home.

N.M. testified that, during the fighting, defendant kicked and hit her. Testimony also indicated that Sierra hit C.M. in the head with a metal car jack, rendering her unconscious. Both incidents occurred in the street between the home and the van. After a guest of the victims stabbed both defendant and Sierra with kitchen knives, defendant's group fled in the van.

The prosecution charged defendant with two counts of first degree burglary and one count of assault. Before trial, the prosecution moved to continue the trial date because of a delay in obtaining some evidence. At a hearing where defendant was not present, defendant's attorney agreed to continue the trial to a later date, which was still within the speedy trial period.

At trial, the prosecution urged the jury to find defendant guilty of the first count of burglary based on his assault on N.M. and the second count of burglary based on Sierra's assault on C.M. The jury verdict forms indicated that the first charge of burglary was “as to N.[M.]” and the second charge was “as to C. [M.]” The assault charge was “as to N.[M.]” Defendant was convicted of all charges. This appeal followed.

II. Double Jeopardy and Merger

Defendant contends that double jeopardy principles preclude the two convictions for first degree burglary. More specifically, he contends that when a person unlawfully enters a building or occupied structure only once but assaults multiple people, he commits only one first degree burglary offense. He also contends that his conviction for third degree assault must merge into a single conviction for first degree burglary because, under section 18–1–408, C.R.S.2010, assault as charged and tried here is a lesser included offense of burglary. The People respond that People v. Borghesi, 66 P.3d 93 (Colo.2003), disposes of defendant's contention because that case rejected the same argument in the context of Colorado's robbery statute, and they concede defendant's assertion that the third degree assault conviction merges into the burglary conviction as to N.M.

Applying the principles enunciated in Borghesi, we conclude that burglary is an offense against property and that the General Assembly intended the additional element of assault in the first degree burglary statute to modify and aggravate the offense of burglary and not to change the gravamen of the crime. We therefore must vacate one of defendant's first degree burglary convictions. Because we vacate the burglary conviction as to victim N.M., we further conclude that defendant's conviction for third degree assault as to N.M. is not a lesser included offense and thus does not merge. Accordingly, we decline to accept the People's concession of merger as to the assault conviction. See People v. Nave, 689 P.2d 645, 647 (Colo.App.1984) (appellate court may decline to accept a concession of error).

A. Standard of Review

Error resulting in a double jeopardy violation implicates a fundamental right, is obvious, and affects the fairness and integrity of the proceedings. See People v. Herron, 251 P.3d 1190, 1193 (Colo.App.2010). We accordingly will review defendant's unpreserved double jeopardy challenge for plain error. See People v. Olson, 921 P.2d 51, 53 (Colo.App.1996). To constitute plain error, the error must so undermine the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction. Id.

B. Law

Under the Double Jeopardy Clauses of both the United States and Colorado Constitutions, a person may not be put in jeopardy twice for the same offense, U.S. Const. amend. V; Colo. Const. art. II, § 18, and may not receive multiple punishments for the same offense. See Woellhaf v. People, 105 P.3d 209, 214 (Colo.2005). Here, we must determine whether defendant's assault on two people in the course of a single unlawful entry of an occupied structure constitutes the same offense or multiple offenses under the first degree burglary statute. See Borghesi, 66 P.3d at 98.

The first degree burglary statute provides:

A person commits first degree burglary if the person knowingly enters unlawfully, or remains unlawfully after a lawful or unlawful entry, in a building or occupied structure with intent to commit therein a crime, other than trespass as defined in this article, against another person or property, and if in effecting entry or while in the building or occupied structure or in immediate flight therefrom, the person or another participant in the crime assaults or menaces any person, or the person or another participant is armed with explosives or a deadly weapon.

§ 18–4–202(1), C.R.S.2010.

C. Application

To determine whether defendant has committed one offense or multiple offenses, we must determine whether Colorado's first degree burglary statute is primarily intended to protect property interests or persons. See Borghesi, 66 P.3d at 98. Because the General Assembly establishes and defines criminal offenses, we turn first to an examination of Colorado's burglary statutes.

Second degree burglary is committed when a person “knowingly breaks an entrance into, enters unlawfully in, or remains unlawfully after a lawful or unlawful entry in a building or occupied structure with intent to commit therein a crime against another person or property.” § 18–4–203(1), C.R.S.2010. First degree burglary encompasses these same elements but adds certain aggravating circumstances that constitute additional elements. See Armintrout v. People, 864 P.2d 576, 581 (Colo.1993) (second degree burglary is a lesser included offense of first degree burglary); People v. Bielecki, 964 P.2d 598, 608 (Colo.App.1998) (same).

At its core, burglary is a form of trespass that is coupled with the intent to commit a crime in a building. The intent to commit a crime must be present at the very moment that the person trespasses. Cooper v. People, 973 P.2d 1234, 1240 (Colo.1999), overruled on other grounds by Griego v. People, 19 P.3d 1, 8 (Colo.2001). Moreover, the trespasser is guilty of burglary even if the trespasser does not commit the intended crime. People v. Lucas, 232 P.3d 155, 167 (Colo.App.2009) (citing People v. Gill, 180 Colo. 382, 385, 506 P.2d 134, 136 (1973)). If the trespass is based on unlawful entry, the crime therefore turns not on the commission of other acts once inside, but on the person's entry with the requisite intent at the time of that entry. Cf. People v. Ramirez, 18 P.3d 822 (Colo.App.2000) (trespass based on unlawfully remaining in structure). Hence, it appears from the plain language of our statutes that burglary in Colorado primarily concerns the protection of property rights. See People v. Moore, 841 P.2d 320, 322–23 (Colo.App.1992) (burglary is, by nature, a crime against possession and ownership).

The People nevertheless contend that because burglary is distinguished from other forms of trespass by the intent to commit a crime in a building, burglary is primarily intended to protect persons who might occupy the building. We disagree.

Under the common law, burglary was defined as breaking and entering the dwelling house of another at night with the intent to commit a felony therein. See Cooper, 973 P.2d at 1237–38. The Cooper court noted that burglary arose as a crime distinct from trespass because it was particularly “egregious and dangerous.” Id. Its purpose was to deter trespass “against habitations,” as opposed to mere property interests. Id. Burglary thus evolved in part because of a concern for the safety of the occupants in a home. Common law burglary, therefore, could be understood to be primarily concerned with protecting persons as opposed to property interests.

The definition of burglary in Colorado, however, does not reflect these same concerns. Colorado has never limited burglary offenses to those committed against a dwelling. Id. at 1238. Beginning in 1861, burglary in Colorado included trespasses against a list of structures, including churches, saloons, and railroad cars. Id. This distinction led the supreme court to declare that burglary is “an offense against property and not...