People v. Garcia
| Decision Date | 14 March 1988 |
| Docket Number | No. 86SA143,86SA143 |
| Citation | 752 P.2d 570 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Victor Manuel GARCIA, Defendant-Appellant. |
| Court | Colorado Supreme Court |
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., David L. Saine, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Joseph Saint-Veltri, Denver, for defendant-appellant.
The appellant, Victor Manuel Garcia (Garcia or the defendant), appeals from his conviction of possession of cocaine as a special offender, for which he received an enhanced sentence of twenty years imprisonment. We find the defendant's claims of error to be without merit; therefore we affirm. 1
In April 1983, the defendant and two co-defendants were charged in El Paso County District Court with possession of cocaine with intent to dispense pursuant to section 18-18-105(1)(a), (2)(a)(I), 8B C.R.S. (1986), a class 3 felony. 2 In September 1983, an amended information was filed, charging Garcia as a special offender under section 18-18-107(1)(d), 8B C.R.S. (1986). 3
Garcia's two co-defendants, Helen Rodriguez and Stephenson Solar, entered into plea agreements with the prosecution and pled guilty to lesser offenses. A jury trial was held in December 1983 on the charges against Garcia. As part of Rodriguez' plea agreement, she testified as a prosecution witness at Garcia's trial. The jury found Garcia guilty of possession of cocaine with intent to dispense, and affirmatively answered the special interrogatory on the special offender charge. The defendant's Motion for New Trial was denied, and the trial court sentenced him to twenty years in the Department of Corrections plus one year of parole. The defendant appealed directly to this court, challenging the constitutionality of the special offender statute and raising numerous allegations of error throughout his trial and sentencing.
At Garcia's trial, Colorado Springs Police Officer Dennis Hougnon testified that he and several other officers had been assigned to watch the Knob Hill Body Shop on March 26, 1983, based on a confidential informant's tip that a drug transaction would be taking place at that location. The informant had advised an officer that an individual named Victor "Manny" Garcia, a man named "Steve," and an unidentified woman would be traveling in a vehicle with Florida license plates. The officer was told that "Manny" had traveled to Colorado Springs in order to sell two kilos of cocaine, and he was looking for a vehicle with Colorado license plates to drive while he was in the state. The informant indicated that the woman would be carrying the cocaine "to keep the heat away from Victor Garcia."
The officers were surveilling the body shop from unmarked police cars when they noticed a van with Florida license plates drive into the body shop's parking lot. Three individuals were in the van. A man later identified as Victor Manuel Garcia exited from the passenger side of the van, entered the body shop, then returned with the shop's owner, Kenny Reinke. Garcia and Reinke entered the van and it was driven into the body shop garage.
Shortly thereafter, Garcia and the two other people in the van, later identified as Stephenson Solar and Helen Rodriguez, left the body shop, climbed into Reinke's Jeep Wagoneer, and drove away. Officer Hougnon followed the Jeep to a Ramada Inn, where the three suspects entered a motel room registered to Rodriguez. Hougnon testified that throughout this surveillance, Rodriguez was carrying a blue duffle bag or backpack.
Some time later, Garcia and Solar left the motel room and drove away in the Jeep; neither was carrying the backpack. The two men returned twenty to thirty minutes later, at which point Rodriguez exited the motel and drove away alone in the Jeep, carrying the backpack. Hougnon and other officers followed, stopped the Jeep, and arrested Rodriguez. The backpack was found on the floorboard on the passenger side; it contained approximately four pounds of cocaine wrapped in two packages. After Rodriguez' arrest, another officer arrested Garcia on the second floor of the main area of the Ramada Inn. Solar was also apprehended in the motel room and placed under arrest.
Rodriguez, Solar, and Garcia were all originally charged with possession of cocaine. Rodriguez testified at trial that she accompanied her boyfriend (Solar) and the defendant on a trip from Florida to Colorado Springs in the van which the police had seen at the body shop. She testified that she did not realize until after they left Florida that the blue backpack which was part of their luggage held cocaine. During the trip from Florida, Garcia sometimes filled a rolled dollar bill with cocaine from the backpack and the three would sniff the cocaine. Rodriguez also testified that while they were in Colorado Springs, she made phone calls for Garcia attempting to locate an individual named Ricky. She explained that the reason she was carrying the backpack when she left the Ramada Inn to go to a restaurant was that Garcia and Solar "were afraid of a rip-off of that person who was coming to see them."
The jury convicted the defendant, and he filed this appeal. Garcia contends that a number of errors occurred in his jury trial and sentencing, and challenges the constitutionality of the special offender statute.
The first claim of error raised by the defendant is that the twenty year sentence imposed on him by the trial court was an abuse of discretion. We disagree.
A trial judge has wide latitude in imposing a sentence, and "a sentence will not be modified unless there has been a clear abuse of discretion." People v. Strong, 190 Colo. 189, 191, 544 P.2d 966, 967 (1976). In People v. Duran, 188 Colo. 207, 533 P.2d 1116 (1975), we adopted the following approach:
In fixing punishment, matters and things other than a defendant's guilt of the particular crime are to be considered. Appropriate, perhaps necessary, to the inquiry are the history, background, character and criminal activities of the defendant. Both aggravating and mitigating circumstances are relevant. Pertinent information is not generally to be disregarded because of exclusionary rules of evidence.
Id. at 214, 533 P.2d at 1119 (citing United States v. Majors, 490 F.2d 1321, 1322 (10th Cir.1974)).
At Garcia's sentencing hearing, the trial court made these factual findings:
[T]here is something special besides the things I have talked about that apply when you are in a level of transaction, trafficking in cocaine that this Defendant was. I think it's obvious on its face, and that is to deal in these quantities [of cocaine], to move these quantities around the country, to set up a mechanism so they can be sold and distributed, there has to be some level of organization. There's a real risk to our society, our community in that organization in and of itself.
.... We find within Mr. Garcia's past a felony conviction for a murder over a drug ripoff that had been planned.
....
He wasn't the hands on murderer. He wasn't the one that actually did the killing. He certainly had some level of involvement, under legal principals [sic] was accountable for what those other people did.
... What we know about the Defendant's character would indicate that he's beyond rehabilitation, that at least the threat of substantial prison terms and involvement in the Court process doesn't slow him down at all; that, in fact, he's quite bold and willing to leave [Florida], facing substantial consequences if he violates the terms of his probation, willing to violate that probation and leave without permission, bring large quantities of cocaine to this state, having gone through a number of states on his way. The rule of law really doesn't slow him down or affect him at all. I think that's demonstrated. The threat of prison sentence doesn't. Probationary supervision doesn't. So there really isn't much in his character that would indicate his sentence ought to be lenient. In fact, it argues that it should be high.
The next thing is the nature of the offense. I have commented on this, on what, when we were talking about these quantities and trafficking in the state, that he did and within an organization where people have in fact been killed, the nature of the offense is quite serious.
The probation officer's presentence report informed the trial court that Garcia's prior conviction for second degree murder involved Garcia and a co-defendant stealing two kilograms of cocaine and a death that resulted. Garcia was originally charged with first degree murder, but agreed to testify for the prosecution in exchange for his plea of guilty to the lesser charge of second degree murder, and a probation sentence instead of a jail term. Garcia was on probation for the second degree murder conviction when he was arrested for this cocaine offense in Colorado. The presentence report also noted that Garcia "was probably involved with some type of organized crime," that he "is an admitted drug dealer," and that he "took the stand in Court and admitted that the cocaine was his." The extremely large quantity of cocaine was another consideration. 4
The possession charge was a class 3 felony, but the special offender statute mandated that Garcia be sentenced for a term longer than the presumptive range for a class 2 felony. The presumptive range at the time for a class 3 felony was four to eight years, while the presumptive range for a class 2 felony was eight to twelve years. The trial court imposed a twenty year sentence--less than the maximum and less than the sentence requested by the prosecution, the investigating detective, and the probation department. The factual findings in the record establish that the trial judge made the necessary inquiries into the defendant's "history, background, character and criminal activities." Duran, 188 Colo. at 214, 533 P.2d at 1119. The specific...
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