People v. Garcia
| Docket Number | Court of Appeals No. 19CA1629 |
| Decision Date | 28 July 2022 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Donald L. GARCIA, Defendant-Appellant. |
| Court | Colorado Court of Appeals |
Philip J. Weiser, Attorney General, Brittany Limes Zehner, Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Jacob B. McMahon, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
Opinion by JUDGE TOW
¶ 1 Defendant, Donald L. Garcia, appeals the judgment of conviction entered on a jury verdict finding him guilty of first degree aggravated motor vehicle theft. This appeal requires us to consider whether the fact that the judge who presided over the trial was statutorily disqualified from doing so because of her prior involvement in the case as counsel for defendant amounts to structural error. We conclude that it does and therefore reverse the judgment of conviction. Because we reject Garcia's challenge to the sufficiency of the evidence underlying the conviction, we remand for a new trial before a different judge.
¶ 2 Garcia took his employer's truck without his permission and drove it off the road and across a drainage ditch, where it broke down. The next morning, Garcia had a friend help him tow the damaged truck back to his employer's shop. The estimated repair cost was $11,579.15.
¶ 3 Garcia was charged with first degree aggravated motor vehicle theft on July 24, 2017. He was represented by Kate Mattern of the State Public Defender's Office. On April 17, 2018, Amanda Hopkins, then a Deputy State Public Defender, appeared on behalf of Garcia at a pretrial readiness conference at which he failed to appear. As both parties concede, Judge Hopkins was appointed to the district court bench on July 10, 2018. Judge Hopkins then presided over the remainder of Garcia's case, including all pretrial hearings, the trial, and sentencing.
¶ 4 We review de novo whether Judge Hopkins should have disqualified herself. See People v. Julien , 47 P.3d 1194, 1197 (Colo. 2002).
¶ 5 "A judge of a court of record shall be disqualified to hear or try a case if ... [sh]e has been of counsel in the case." § 16-6-201(1)(c), C.R.S. 2021. Judge Hopkins appeared as counsel for Garcia at the pretrial readiness conference and was therefore required to disqualify herself. See id. Her minimal level of representation at the hearing does not change our conclusion. Applying Julien to the defense context, "a judge must disqualify ... herself sua sponte ... if facts exist tying the judge to ... some role in the [defense] of the case during the judge's former employment." 47 P.3d at 1198 (emphasis added). And if a judge "personally participated in the [defense] of [the] case in any way ," she is disqualified from serving as a judge in the case. See id. at 1200 (emphasis added). Because Judge Hopkins had "some role" in the defense of the case and personally participated "in any way" in Garcia's defense, she erred by not disqualifying herself.1 See § 16-6-201(1)(c). Notably, neither party appears to assert that Judge Hopkins's appearance and minimal participation in the case does not amount to her having "been of counsel" in the matter. See id.
¶ 6 Further, we conclude that when a statutorily disqualified judge presides over a case, it is structural error.
¶ 7 In People v. Abu-Nantambu-El , 2019 CO 106, ¶ 39, 454 P.3d 1044, our supreme court held that when a potential juror who is statutorily disqualified from serving pursuant to section 16-10-103(1), C.R.S. 2021, nevertheless serves on the jury, it is structural error. This is so, the supreme court said, because such potential jurors "are conclusively presumed by law to be biased." Abu-Nantambu-El , ¶ 32.
¶ 8 In this respect, section 16-6-201 is analogous to section 16-10-103, in that it conclusively presumes that a judge who previously served in the case as counsel is biased. No actual enmity toward either side is required.2 We see no logical distinction to be made between a statutorily disqualified juror and a statutorily disqualified judge. See id. at ¶ 27 ().
¶ 9 Because Judge Hopkins was presumed by statute to be biased, Garcia's trial was "before a biased judge," which is structural error. See Hagos v. People , 2012 CO 63, ¶ 10, 288 P.3d 116.
¶ 10 We also reject the People's contention that Garcia waived this claim.
¶ 11 Waiver is "the intentional relinquishment of a known right or privilege." People v. Rediger , 2018 CO 32, ¶ 39, 416 P.3d 893 (quoting Dep't of Health v. Donahue , 690 P.2d 243, 247 (Colo. 1984) ). Just as nothing in the record made Judge Hopkins's prior involvement in the case obvious to her, nothing made it obvious to Garcia or his attorneys. Again, the minute order in the court file did not reflect Judge Hopkins's appearance at the April hearing, and there is no reason to believe anyone had a transcript of that hearing prior to trial. The brief and nonsubstantive hearing at which Judge Hopkins appeared occurred three months before Judge Hopkins's appointment. Defendant did not appear in court on this case for five months after Judge Hopkins's sole appearance on his behalf. The Deputy State Public Defender who handled the case between the date Judge Hopkins appeared and the trial was John Hoag, not Mattern (though Mattern rejoined Hoag as co-counsel at the trial, which was over a year after Judge Hopkins's appearance). Thus, it is not clear from the record that Garcia's attorneys recalled that Judge Hopkins had previously appeared in the case.
¶ 12 Finally, we do not share the People's concern that this could lead to gamesmanship. The prosecutor had the same opportunity to raise the issue as did Garcia. See Abu-Nantambu-El , ¶ 38.
¶ 13 In sum, nothing in the record suggests that Mattern, Hoag, or Garcia was aware of Judge Hopkins's prior involvement in the case, either at the time of the judge's assignment to the case or at the time of trial. Thus, we discern no waiver.3 Accordingly, we must reverse the judgment of conviction.
¶ 14 Garcia also challenges the sufficiency of the evidence to convict him of first degree aggravated motor vehicle theft. Because retrial on this charge would be barred if this contention is meritorious, we must address the issue. In doing so, however, we conclude that the evidence was sufficient.
¶ 15 Both parties assert that we review sufficiency of the evidence claims de novo. We agree, to a point. Both our supreme court and divisions of this court have occasionally referred to the review of a sufficiency of the evidence challenge as a "de novo review." See, e.g. , People v. Vidauri , 2021 CO 25, ¶ 10, 486 P.3d 239 ; People in Interest of K.D.W. , 2020 COA 110, ¶ 37, 471 P.3d 1276. However, this increasingly used shorthand reference can be a bit misleading.
¶ 16 The original, and more complete, recitation of the standard is that "[w]e review the record de novo to determine whether the evidence before the jury was sufficient both in quantity and quality to sustain the convictions." Dempsey v. People , 117 P.3d 800, 807 (Colo. 2005). We view the evidence as a whole and in the light most favorable to the prosecution to determine whether the evidence was "sufficient to support the conclusion by a reasonable mind that the defendant was guilty beyond a reasonable doubt." People v. Griego , 2018 CO 5, ¶ 24, 409 P.3d 338. In doing so, we give the prosecution "the benefit of every reasonable inference which might be fairly drawn from the evidence." People v. Perez , 2016 CO 12, ¶ 25, 367 P.3d 695 (quoting People v. Gonzales , 666 P.2d 123, 128 (Colo. 1983) ). But, as the supreme court has recently reiterated, in conducting this review, we Thomas v. People , 2021 CO 84, ¶ 10, 500 P.3d 1095 (quoting People v. Harrison , 2020 CO 57, ¶ 33, 465 P.3d 16 ).4 Put another way, what we review de novo is not the ultimate conclusion of guilt by the fact finder but, rather, whether the prosecution put forward sufficient evidence to "[meet] its burden of proof with respect to each element of the crime charged."
Martinez v. People , 2015 CO 16, ¶ 22, 344 P.3d 862. And the prosecution fails to meet this burden "[i]f the evidence is such that reasonable jurors must necessarily have a reasonable doubt." Clark v. People , 232 P.3d 1287, 1292 (Colo. 2010) (citing People v. Bennett , 183 Colo. 125, 132, 515 P.2d 466, 470 (1973) ).
A person commits aggravated motor vehicle theft in the first degree if he or she knowingly obtains or exercises control over the motor vehicle of another without authorization or by threat or deception and ... [c]auses five hundred dollars or more property damage, including but not limited to property damage to the motor vehicle involved, in the course of obtaining control over or in the exercise of control of the motor vehicle.
§ 18-4-409(2)(e), C.R.S. 2021. "A person acts ‘knowingly’ ... with respect to a result of his conduct, when he is aware that his conduct is practically certain to cause the result." § 18-1-501(6), C.R.S. 2021.
¶ 17 We disagree with Garcia that the evidence was insufficient to show that he knowingly caused damage to the truck because there was no evidence addressing the manner in which he drove the vehicle.
¶ 18 Initially, we note that it is unclear whether the People were required to prove that Garcia "knowingly" caused damage to the...
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