People v. Garcia
| Decision Date | 12 January 2017 |
| Docket Number | Court of Appeals No. 13CA2117 |
| Citation | 452 P.3d 55 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Juvenal Onel GARCIA, Defendant-Appellant. |
| Court | Colorado Court of Appeals |
Cynthia H. Coffman, Attorney General, William G. Kozeliski, 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 TAUBMAN
¶ 1 Defendant, Juvenal Onel Garcia, appeals his convictions of first degree burglary, attempted sexual assault, unlawful sexual contact, third degree assault, violation of a protection order, and obstruction of telephone service; his sentences for attempted sexual assault and unlawful sexual contact; and an order designating him a sexually violent predator (SVP). We affirm the convictions and sentences and remand for reconsideration of the SVP designation.
¶ 2 Garcia and the victim met in middle school and married after the victim turned eighteen. In August 2010, a protection order was issued that prohibited Garcia from contacting the victim. However, on occasion in April 2012, he would go to the victim’s home to watch their children. One night, Garcia was late. When he arrived, the victim told him to leave because he had been drinking. Instead, he took her car keys and left. The victim eventually reported her car stolen after he did not return for several hours.
¶ 3 When Garcia came back, they physically struggled. According to the victim, Garcia forcefully tried to take off her clothes and initiate sexual intercourse but she fought him off, and he abruptly stood up and masturbated. They then resumed arguing, he prevented her from calling 911, and he left, again taking her car. According to Garcia, their sexual contact was consensual and he voluntarily ended it before leaving. The victim was taken to the hospital.
¶ 4 At his March 2013 trial, Garcia was convicted as noted above and was sentenced to a term of ten years to life in the custody of the Department of Corrections. The trial court designated him an SVP. Garcia raises the following issues: (1) the trial court erred by failing to apply the "knowingly" mens rea to the "caused submission" element of the offenses of burglary and attempted sexual assault; (2) Garcia’s conviction and sentence for class 4 attempted sexual assault and class 4 unlawful sexual contact must be vacated because the jury did not find that he knowingly used force to cause submission; (3) Garcia was improperly convicted of class 4 attempted sexual assault and class 4 unlawful sexual contact because the jury was not correctly instructed concerning force related to each offense, and therefore his convictions were unconstitutionally elevated; (4) the trial court erred by failing to instruct the jury that "knowingly" applied to every element of the offense of violation of a protection order; and (5) the trial court erred in designating Garcia an SVP because he never established or promoted his relationship with the victim for purposes of sexual victimization as required by the statute.
¶ 5 Garcia contends that the trial court erred in not applying "knowingly" to every element of the offense of sexual assault, including the "caused submission" element of this offense. We perceive no reversible error.
¶ 6 At trial, the jury was instructed on the elements of sexual assault as follows:
The instructions did not set off "knowingly" as a separate element of the offense. The instructions also informed the jury that, if it found Garcia guilty of attempted sexual assault, it should determine whether he attempted "to cause submission of the person through the actual application of physical force or physical violence."
¶ 7 We review de novo whether instructions accurately informed the jury of the law. People v. Lucas , 232 P.3d 155, 162 (Colo. App. 2009). Where a defendant does not object to an erroneous jury instruction, review is under the plain error standard and reversal is required when the error is obvious and substantial. People v. Garcia , 28 P.3d 340, 344 (Colo. 2001). A defendant must show that an error was "so clear cut, so obvious, a trial judge should be able to avoid it without benefit of objection." People v. Ujaama , 2012 COA 36, ¶ 42, 302 P.3d 296, 304. A defendant also has the burden of establishing that the error was "seriously prejudicial," that is, "so grave that it undermines the fundamental fairness of the trial itself so as to cast serious doubt on the reliability of the conviction." Id. at ¶ 43, 302 P.3d at 305.
¶ 8 When a statutory offense such as sexual assault specifies a mental state, unless otherwise stated in its text, the culpable mental state applies to every element. Copeland v. People , 2 P.3d 1283, 1286 (Colo. 2000).
¶ 9 Based on the jury instructions that existed at the time of trial in this case and the language of the statute, we find no plain error.
¶ 10 Garcia raises a fair point that offsetting "knowingly" in the jury instructions effectively demonstrates that it applies to every element of the offense. The current Colorado Model Jury Instructions indeed offset "knowingly" as a separate element to indicate that it applies to every other element of the offense. See COLJI-Crim. 3-4:01 (2015). However, the Colorado Model Jury Instructions applicable at the time of Garcia’s trial did not offset "knowingly" from the other elements of the offense. See COLJI-Crim. 3-4:01 (2008). The instructions used at Garcia’s trial match those in the Model Jury Instructions that existed at that time. Although "[t]he [model] instructions [had] not been approved as accurate reflections of the law," they were "intended as helpful resource material for both courts and criminal practitioners in their preparation of instructions for specific cases and should be used accordingly." Preface, COLJI-Crim. (2008).
¶ 11 Considering those model jury instructions, we conclude that any error in the jury instructions not defining "knowingly" as a separate element of the offense was not obvious.
¶ 12 Therefore, we conclude the trial court did not commit plain error, and we affirm Garcia’s conviction for sexual assault.
¶ 13 Garcia next contends that his conviction and sentence for both class 4 attempted sexual assault and class 4 unlawful sexual contact must be vacated because the jury was not instructed and thus did not find that Garcia knowingly used force to cause submission such that elevation of the offense to a higher class felony is warranted. We disagree.
¶ 14 Like the instructions in Part II, supra , the instruction on unlawful sexual contact had a force interrogatory that did not include a definition for "force." Garcia raises these contentions as separate issues related to each conviction, but because they rely on the same argument, we address them together.
¶ 15 Interpretation of a statute is subject to de novo review. People v. McKimmy , 2014 CO 76, ¶ 19, 338 P.3d 333, 338.
¶ 16 Garcia incorrectly relies on Medina v. People , 163 P.3d 1136 (Colo. 2007), to assert that the standard of reversal is structural error. Instead, the proper standard is plain error. The supreme court in Medina relied on structural error review regarding the definition of a class 4 felony accessory conviction because the jury was actually instructed on the definition of a class 5 felony accessory charge, and both parties operated at trial under the assumption that the defendant had been charged with a class 5 felony. Id. at 1141–43.
¶ 17 Instead, the People correctly rely on Washington v. Recuenco , 548 U.S. 212, 221–22, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006), to assert that, as in this case, an unobjected-to error in the form of a misdescription or omission of an element of an offense must be reviewed for plain error. See Tumentsereg v. People , 247 P.3d 1015, 1019 (Colo. 2011) (citing Recuenco ). Trial error can rise to the level of plain error if there is a reasonable possibility that it contributed to the defendant’s conviction or sentence. Id. at 1018–19 ; see also Griego v. People , 19 P.3d 1, 7–8 (Colo. 2001) ().
¶ 18 Initially, we address and reject the People’s argument that because Garcia briefed this issue on appeal only under a structural and not a plain error standard, his contention is waived.
¶ 19 The People rely on two Tenth Circuit cases, United States v. Solomon , 399 F.3d 1231, 1238 (10th Cir. 2005), and United States v. LaHue , 261 F.3d 993, 1009 (10th Cir. 2001), to support this contention. Both Solomon and LaHue held that the defendants waived plain error review by not raising a Sixth Amendment objection in the district court and not arguing plain error on appeal. However, these cases are distinguishable because the defendants there did not argue that an alternative standard of review, such as structural error, applied.
¶ 20 No Colorado case law supports the People’s argument. Generally, when an error claimed on appeal was not presented in the trial court, we review the claim under the plain error doctrine. See People v. Miller , 113 P.3d 743, 750 (Colo. 2005).
¶ 21 In fact, in Griego , 19 P.3d at 7, the supreme court addressed this issue and adopted the holding of Neder v. United States , 527 U.S. 1, 8–15, 119 S.Ct. 1827, 144...
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...authorization’ element of the crime of theft with the culpable mental state of ‘knowingly.’ " 109 P.3d at 663-64.¶ 49 In People v. Garcia , 2017 COA 1, 452 P.3d 55, a division of this court ruled that a failure to set off the "knowingly" element of a sexual assault offense did not satisfy t......