People v. Garcia

• Decision Date: 30 September 2010
• Docket Number: No. 09CA0167.,09CA0167.
• Citation: 251 P.3d 1152
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee,v.Alejandro GARCIA, Defendant–Appellant.
• Court: Colorado Court of Appeals

251 P.3d 1152

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

v.Alejandro GARCIA, Defendant–Appellant.

No. 09CA0167.

Colorado Court of Appeals, Div. IV.

Sept. 30, 2010.

John W. Suthers, Attorney General, Rebecca A. Adams, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.Walta, Gehring, Harms, & Dingle LLC, Christopher H. Gehring, Denver, Colorado, for Defendant–Appellant.Opinion by Judge MILLER.

Defendant, Alejandro Garcia, appeals the judgment of conviction entered upon a jury verdict finding him guilty of possession with intent to sell or distribute marijuana and possession of eight ounces or more of marijuana and designating him as a special offender (possession of over 100 pounds). He also appeals the sentence imposed. We affirm in part, vacate in part, and remand to the trial court for correction of the mittimus.

I. Background

While driving a pick-up truck with a passenger eastbound on Interstate 76, defendant was stopped by a Colorado State Patrol officer who observed him making an unsafe lane change. During the stop, the officer called for the assistance of a “K–9” officer with a drug-sniffing dog. With the aid of the dog, the officers discovered 481 pounds of marijuana in the truck bed. After a jury trial, defendant was convicted as described above and sentenced to twenty-four years in the Department of Corrections on each count, to be served concurrently. The trial court also sentenced him to five years of mandatory parole on the possession with intent conviction and to a period of mandatory parole “as required by statute” on the possession of eight ounces or more conviction.

On appeal, defendant argues that the trial court erred by (1) allowing the hearing on the motion to suppress evidence of the marijuana discovered in the truck to commence before defendant's late arrival, (2) denying the motion to suppress, (3) failing to merge the possession and possession with intent to sell or distribute convictions, and (4) imposing five years of mandatory parole. We disagree with the first and second contentions but agree with the third and fourth.

II. Analysis

A. Did the Trial Court Err by Allowing the Suppression Hearing to Proceed Before Defendant's Late Arrival?

The trial court issued a Case Management Order on June 4, 2007 setting a hearing on all pretrial motions for September 5, 2007. On August 6, 2007 defendant moved to suppress evidence of the marijuana discovered in the truck, contending that the officers lacked reasonable suspicion or probable cause to conduct the search. At the outset of the September 5 hearing, defense counsel advised the court that defendant had not yet arrived, because he had gotten lost while en route, but was expected soon. The court responded, “[Y]our client needs to be here, so let's go ahead and pass on it for right now.” Defendant's counsel then said,

I can proceed without it. Because I would even have considered waiving his appearance, because he's not going to testify. And it's really—it's really legal issues that we're talking about. And it's really—it's the People's burden, in terms of the issue in the case and their witness.

The trial court responded, “Let's go ahead and let's get it going.” After the officer who made the stop testified, the court took a brief recess. At the conclusion of the recess, the court and defendant's counsel noted that defendant had arrived and was present in the courtroom. The K–9 officer then testified for the prosecution. Defendant's counsel had no questions for that witness and called no witnesses. The trial court then denied the motion.

A defendant has a right to be present at all critical phases of a criminal trial, including a suppression hearing. People v. Harris, 914 P.2d 434, 437 (Colo.App.1995). This right is guaranteed by due process “if the fundamental fairness of the proceeding would be undermined by the defendant's absence.” People v. Isom, 140 P.3d 100, 104 (Colo.App.2005).

Thus, due process requires that a defendant be present to the extent that a fair and just hearing would be thwarted by his or her absence. People v. Gallegos, 226 P.3d 1112, 1120 (Colo.App.2009) (citing Luu v. People, 841 P.2d 271, 275 (Colo.1992)). A defendant's presence is not required for due process if it would be useless or only slightly beneficial. Id.; see also Crim. P. 43(c)(2) (defendant's presence not required at a conference or argument on a question of law). Accordingly, defendant must establish how his absence from a portion of the hearing affected his ability to defend against the charges. Gallegos, 226 P.3d at 1120; Harris, 914 P.2d at 437.

Because neither defendant nor his counsel asserted a contemporaneous objection on this issue, we review for plain error. See People v. Munsey, 232 P.3d 113, 120 (Colo.App.2009). Plain error is error that is both obvious and substantial and that so undermines the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the conviction. People v. Miller, 113 P.3d 743, 750 (Colo.2005).

We do not consider the People's contention that defendant waived his right to be present for the entire hearing by virtue of his counsel's statement and his own tardiness because we conclude that defendant was not prejudiced by his late arrival. Specifically, the record establishes that

• Defendant's counsel advised the trial court at the outset of the hearing that he did not intend to call defendant to testify, and he did not do so even after defendant arrived.

• Defendant arrived during a brief recess after the testimony of the prosecution's first witness. Thus, while he missed the testimony of the first officer, he was present during the entire testimony of the K–9 officer, the arguments of counsel, and the court's ruling from the bench.

• Defendant had previously reviewed with his counsel the first officer's report, which was relied upon during the officer's testimony.

• Defendant could have discussed the first officer's testimony with his counsel during the recess.

• Defendant's counsel did not request a longer recess to confer with his client.

• Defendant's counsel did not ask to recall the first officer.

Finally, defendant has not identified specific examples of anything that he or his counsel might have said or done had he been present during the first part of the hearing.

Accordingly, we conclude that commencing the suppression hearing before defendant's late arrival did not so undermine the fundamental fairness of his trial as to cast serious doubt on the reliability of his conviction.

B. Did the Trial Court Err in Denying the Suppression Motion?

The trial court found the following facts at the suppression hearing. On January 17, 2007, the first officer, while conducting routine patrol on Interstate 76, observed an eastbound pick-up truck bearing Iowa plates change lanes without signaling. The officer directed the truck to the side of the highway and asked defendant, the driver, for his driver's license, proof of insurance, and registration papers. Defendant promptly provided the documents with the assistance of his male passenger. Defendant had an Arizona license showing that he resided in Tucson, Arizona. The officer then inquired as to the owner of the vehicle. Defendant responded slowly, but ultimately indicated that the truck belonged to a friend.

Because the officer, who had extensive training and experience in drug investigations, was concerned by the lack of knowledge about ownership of the truck, he asked defendant to step outside. The officer again asked who owned the truck. After a long pause, defendant reiterated that the truck was owned by a friend. When the officer asked for the name of the friend, defendant responded that he was actually a friend of the passenger. The officer then asked for the name of the passenger, and after another pause defendant gave the passenger's first name but could not provide his last name. In response to further questioning, defendant said they were headed to Iowa, but could not provide an address, and indicated they would be gone for a week.

The officer then questioned the passenger, who also was hesitant in his responses and could not identify the owner by name or the owner's address or phone number. The passenger said they were returning the truck to the owner. When asked how they would do that without knowing the owner's address or phone number, defendant and the passenger said that they planned to call the owner's uncle to reach the owner.

The officer ran a check on the driver's license and the registration, which revealed no warrants or criminal history for defendant and no reports that the truck had been stolen. He returned the documents to defendant, gave him a verbal warning about the lane change violation, and told him he was free to go. The officer testified that at that point he had no problem with defendant, the passenger, and the truck leaving the scene.

However, after defendant took two or three steps toward the truck, the officer asked if they could talk further. Defendant responded, “Yeah, sure,” and walked back toward the officer. The officer said he had concerns that the story provided by defendant and the passenger did not make sense. He asked defendant and the passenger if they had narcotics or weapons in the truck, specifically mentioning marijuana, methamphetamine, cocaine, and heroin, and both told him they did not. The officer then separately provided defendant and the passenger with copies of a state patrol form consenting to a search of the vehicle. They both declined consent.

At this point, the officer told them that, based upon his training and experience, they were free to leave but that the truck would have to stay for a K–9 unit to conduct a narcotic dog search. The officer offered to let them make a phone call or to arrange for them to have a ride into the nearest town. Defendant and the passenger said they wanted to wait with the truck.

The K–9 officer...