People v. Gallegos

• Decision Date: 19 February 2009
• Docket Number: No. 07CA1299.,07CA1299.
• Citation: 226 P.3d 1112
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Christine Anita GALLEGOS, Defendant-Appellant.
• Court: Colorado Court of Appeals

226 P.3d 1112

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Christine Anita GALLEGOS, Defendant-Appellant.

No. 07CA1299.

Colorado Court of Appeals.

February 19, 2009.

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

Law Office of Samuel Santistevan, LLC, Samuel Santistevan, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge J. JONES.

Defendant, Christine Anita Gallegos, appeals the judgment of conviction and sentences entered on jury verdicts finding her guilty of criminal impersonation, theft, and false reporting, and on findings by the court that she is a habitual criminal. We affirm.

I. Background

Defendant stole merchandise valued at $9.94 from a convenience store. A police officer witnessed the theft and, with another officer's assistance, immediately apprehended defendant. One of the officers placed defendant under arrest and asked her what her name was. She told him that her name was "Ramona Gallegos" and that she was born on June 17, 1961. Ramona Gallegos is defendant's sister's name.

While arresting defendant, one of the officers noticed a teenage girl looking at defendant "as if she knew her." The officer approached the girl, who told the officer that defendant was her aunt, Christine Gallegos. However, when the officer confronted defendant with the girl's statement, she persisted in maintaining that her name was Ramona Gallegos.

At the police station, while filling out a custody report, defendant again indicated that her name was "Ramona Gallegos." After taking defendant's fingerprints, an officer submitted them to the Colorado Bureau of Investigation (CBI). CBI advised the police that the fingerprints belonged to a "Christine Gallegos," whose date of birth was August 19, 1965.

The People initially charged defendant with forgery, criminal impersonation, and theft, and later added five habitual criminal charges. A jury convicted defendant of criminal impersonation (a class 6 felony), theft (a class 3 misdemeanor), and the lesser nonincluded offense of false reporting (a class 3 misdemeanor). The court adjudicated defendant a habitual criminal after the prosecution proved that defendant had four prior felony convictions, two for theft and two for attempted escape. Pursuant to the habitual criminal statute, section 18-1.3-801(2), C.R.S. 2008, the court sentenced defendant to six years in the custody of the Department of Corrections, four times the eighteen-month maximum presumptive range sentence for the felony criminal impersonation conviction. See § 18-1.3-401(1)(a)(V)(A), C.R.S.2008.

II. Lesser Nonincluded Offense

Defendant contends that her convictions for criminal impersonation and false reporting must be reversed because the district court failed to instruct the jury explicitly that it could convict her of the lesser nonincluded offense of false reporting and acquit her of the criminal impersonation charge. We disagree.

During a jury instruction conference, defendant's counsel asked the district court to instruct the jury on false reporting, a lesser nonincluded offense of the charged offense of criminal impersonation, and to "modify a lesser included bridge instruction and have that added to the main packet." The bridge instruction would have instructed the jury of its option to convict defendant of the lesser nonincluded offense and acquit her of the charged offense. The court agreed to include such an instruction, but only if it later decided to instruct the jury on the lesser nonincluded offense. The court later included the lesser nonincluded instruction in the jury instructions, but failed to include a bridge instruction. The court gave the parties an opportunity to object to the instructions, but defendant did not object to them before they were submitted to the jury.

It is far from clear that defendant preserved the objection she now raises on appeal. Nonetheless, we will assume that she did so. Accordingly, we review for harmless error. People v. Miller, 113 P.3d 743, 749 (Colo.2005); People v. Gordon, 160 P.3d 284, 288 (Colo.App.2007). Under the harmless error standard, reversal is required only if the error affected the substantial rights of the defendant. People v. Garcia, 28 P.3d 340, 344 (Colo.2001); Gordon, 160 P.3d at 288.

It is the district court's duty to instruct the jury on all matters of law. Garcia, 28 P.3d at 343; Gordon, 160 P.3d at 288. The district court has substantial discretion in formulating the jury instructions, so long as they are correct statements of the law and fairly and adequately cover the issues presented. People v. Romero, 197 P.3d 302, 309 (Colo.App.2008); Gordon, 160 P.3d at 288. A conviction will not be reversed if the instructions, read as a whole, adequately inform the jury of the law. People v. Gonyea, 195 P.3d 1171, 1174 (Colo.App.2008).

An offense is a lesser included offense of a charged offense where "[i]t is established by proof of the same or less than all the facts required to establish the commission of the offense charged. . . ." § 18-1-408(5)(a), C.R.S.2008; see Meads v. People, 78 P.3d 290, 293-94 (Colo.2003). "[A] lesser non-included offense may be any offense lesser in severity than the original charged offense, provided that such lesser offense arises from the same facts leading to the original charge, and that such lesser offense also contains at least one element not contained in the charged offense." People v. Skinner, 825 P.2d 1045, 1047 (Colo.App.1991).

The distinction between lesser included offenses and lesser nonincluded offenses is important. A jury may not convict a defendant on the original charged offense and also on the lesser included offense. § 18-1-408(1)(a), C.R.S.2008; Skinner, 825 P.2d at 1047. However, because a charged offense and a lesser nonincluded offense are independent offenses, they do not merge—that is, a defendant may be convicted of both. See People v. Whittiker, 181 P.3d 264, 278 (Colo. App.2006); People v. Ramirez, 18 P.3d 822, 830 (Colo.App.2000); Skinner, 825 P.2d at 1047.

The court instructed the jury that it was to consider each charge independently. Defendant's counsel explained to the jury in closing argument that defendant was seeking a "not guilty" verdict on the criminal impersonation charge, but conceded that defendant was guilty of false reporting. See Whittiker, 181 P.3d at 276 (in determining whether jury was adequately instructed, appellate court considers whether defense counsel's closing argument fairly communicated the defendant's theory of the case). Thus, the jury was aware of both its option to acquit defendant of one charge notwithstanding a guilty verdict on another and defendant's position. An additional instruction was not required. See People v. Gallegos, 950 P.2d 629, 633-34 (Colo.App.1997).

III. Admissibility of CRE 404(b) Evidence

Defendant contends that the district court abused its discretion by admitting evidence that she had used her sister's name in connection with a past arrest, which had led to the sister's arrest when defendant failed to appear in court. We disagree.

The court admitted testimony by defendant's sister, Ramona Gallegos, that when defendant was previously arrested for shoplifting, defendant told police that her name was Ramona Gallegos. Ramona Gallegos was named on the court summons and was arrested after defendant failed to appear on that summons. Officers eventually released Ramona Gallegos after determining that her fingerprints did not match those of the person booked on the summons.

We review a district court's admission of other act evidence for an abuse of discretion. People v. Cousins, 181 P.3d 365, 370 (Colo.App.2007); People v. Boykins, 140 P.3d 87, 96 (Colo.App.2005). A district court abuses its discretion when its ruling is manifestly arbitrary, unreasonable, or unfair. Cousins, 181 P.3d at 370.

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person to show that she acted in conformity therewith. CRE 404(b); Boykins, 140 P.3d at 96. Such evidence, however, is admissible for other purposes, such as to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. CRE 404(b); People v. Spoto, 795 P.2d 1314, 1318 (Colo.1990).

To introduce Rule 404(b) evidence, the prosecution must establish by a preponderance of the evidence that the other crime or act occurred and that the defendant committed it. Kinney v. People, 187 P.3d 548, 554 (Colo.2008); People v. Garner, 806 P.2d 366, 370 (Colo.1991); People v. Novitskiy, 81 P.3d 1070, 1072 (Colo.App.2003). Further, such evidence is admissible only if (1) the evidence relates to a material fact in the case; (2) the evidence is logically relevant; (3) the logical relevance of the evidence is independent of the intermediate inference prohibited by the rule; and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. Kinney, 187 P.3d at 554 & n. 2; Spoto, 795 P.2d at 1318.

Defendant did not contest that she committed the prior act. The district court concluded that the evidence was admissible to prove knowledge, intent, and lack of mistake. We perceive no abuse of discretion in its ruling.

Evidence that defendant previously had used her sister's name in connection with an arrest was logically relevant to a material issue in the case. An element of the offense of criminal impersonation is that the defendant knowingly assumed a false identity to gain a benefit for herself or to injure or defraud another, § 18-5-113(1)(e), C.R.S. 2008, and defendant's theory was that she did not have the requisite intent. The evidence bore on defendant's intent, plan, knowledge, and absence of mistake—that is, on the scienter requirement of the offense. Because defendant previously used her sister's name during a theft arrest and knew the consequences of doing so, her...