People v. Gonzales
| Citation | 415 P.3d 846 |
| Decision Date | 18 May 2017 |
| Docket Number | Court of Appeals No. 14CA1174 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Valerie Valentina GONZALES, Defendant-Appellant. |
| Court | Court of Appeals of Colorado |
Cynthia H. Coffman, Attorney General, Patrick A. Withers, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellant
Douglas K. Wilson, Colorado State Public Defender, Anne T. Amicarella, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
Opinion by JUDGE GRAHAM
¶ 1 Defendant, Valerie Valentina Gonzales, appeals the judgment of conviction entered on jury verdicts finding her guilty of unlawful possession of a schedule II controlled substance (oxycodone) and unlawful possession of a schedule III controlled substance (hydrocodone). We conclude that in this instance the provision in section 18-18-413, C.R.S. 2016, allowing for authorized possession of a controlled substance by "a person acting at the direction of the legal owner of the controlled substance" is not an affirmative defense to a charge of unlawful possession of a controlled substance under section 18-18-403.5, C.R.S. 2016. We also reject defendant's remaining contentions. Consequently, we affirm.
¶ 2 Defendant was charged with simple possession after the police found Percocet and Vicodin in her purse for which she did not have a prescription. At trial, defendant's neighbor testified that she had prescriptions for both medications and that she had asked defendant to hold her prescriptions while they were out that evening because her purse was too small and she did not wish to leave the medications at home. A jury convicted defendant of possession and the trial court sentenced her to probation.
¶ 3 Defendant contends that she could lawfully possess the medications if she was "acting at the direction of the legal owner of the controlled substance." § 18-18-413. She therefore argues that the trial court should have given the jury an affirmative defense instruction. Defendant further contends the trial court plainly erred by not giving an affirmative defense instruction based on the prescription exception in section 18-18-302(3)(c), C.R.S. 2016, that allows lawful possession by "[a]n ultimate user or a person in possession" of the medication "pursuant to a lawful order of a practitioner." We conclude that under the circumstances here, section 18-18-413 is not an affirmative defense to unlawful possession and that the trial court did not plainly err by failing sua sponte to give either instruction.
¶ 4 "We review de novo the question of whether a jury instruction accurately informed the jury of the governing law." People v. Carbajal , 2014 CO 60, ¶ 10, 328 P.3d 104. "We review a trial court's decision to give or not to give a particular instruction for an abuse of discretion." People in Interest of J.G. , 2016 CO 39, ¶ 33, 370 P.3d 1151.
¶ 5 Statutory construction is a question of law that we review de novo. Marsh v. People , 2017 CO 10M, ¶ 19, 389 P.3d 100.
¶ 6 "Appellate courts review errors that were not preserved by objection under a plain error standard." People v. Davis , 2015 CO 36M, ¶ 32, 352 P.3d 950. Plain error is "obvious and substantial," Hagos v. People , 2012 CO 63, ¶ 14, 288 P.3d 116, and must have "so undermined the fundamental fairness of the [proceeding] ... as to cast serious doubt on the reliability of the judgment" to merit reversal, People v. Miller , 113 P.3d 743, 750 (Colo. 2005) (citation omitted).
¶ 7 We apply the plain error standard here because defense counsel did not request the court to treat section 18-18-413 as an affirmative defense or request any instruction based on section 18-18-302(3)(c).
¶ 8 At the close of the first day of trial, defense counsel tendered an instruction stating as follows: "A person is authorized to possess a controlled substance if it has been prescribed to them or if they are acting at the direction of the person to whom it has been prescribed." As authority for the instruction, counsel cited sections 18-18-413 and 18-18-401, C.R.S. 2016.
¶ 9 The prosecutor objected to the instruction, and the court agreed to give the instruction over the objection in a modified form that more closely tracked the language of section 18-18-413. Significant to our review, defense counsel never requested that the instruction be tied to the elements of the charged offenses or suggested to the court that it was an affirmative defense.1 The trial court gave the jury the following instruction:
A person to whom or for whose use any controlled substance has been prescribed or dispensed by a practitioner may lawfully possess it, but only in the container in which it was delivered to him unless he is able to show that he is the legal owner or a person acting at the direction of the legal owner of the controlled substance.
¶ 10 Nor did defense counsel request an affirmative defense instruction based on section 18-18-302(3)(c). See People v. Whaley , 159 P.3d 757, 760 (Colo. App. 2006) ().
¶ 11 "It is the duty of the trial court to ‘correctly instruct the jury on all matters of law for which there is sufficient evidence to support giving instructions.’ " Carbajal, ¶ 10 (quoting Cassels v. People, 92 P.3d 951, 955 (Colo. 2004) ).
When an exception is included in a statutory section defining the elements of the offense, it is generally the burden of the prosecution to prove that the exception does not apply. However, when an exception is found in a separate clause or is clearly disconnected from the definition of the offense, it is the defendant's burden to claim it as an affirmative defense.
People v. Reed , 932 P.2d 842, 844 (Colo. App. 1996) ; accord Whaley , 159 P.3d at 759 ; see § 18-1-407(1), C.R.S. 2016 ().
¶ 12 The primary goal in statutory interpretation is to ascertain and effectuate the General Assembly's intent, and we begin this task by examining the plain meaning of the statutory language. Marsh , ¶ 20. "We read statutes ‘as a whole in order to accord consistent, harmonious, and sensible effects to all their parts.’ " People v. Adams , 2016 CO 74, ¶ 12, 384 P.3d 345 (quoting A.S. v. People , 2013 CO 63, ¶ 10, 312 P.3d 168 ).
¶ 13 Section 18-18-413 is located within the "offenses and penalties" of the Uniform Controlled Substances Act of 2013. §§ 18-18-101 to – 606, C.R.S. 2016. Section 413 is titled "[a]uthorized possession of controlled substances" and states:
A person to whom or for whose use any controlled substance has been prescribed or dispensed by a practitioner may lawfully possess it, but only in the container in which it was delivered to him unless he is able to show that he is the legal owner or a person acting at the direction of the legal owner of the controlled substance. Any person convicted of violating this section commits a drug petty offense, and the court shall impose a fine of not more than one hundred dollars.
¶ 14 Defendant was charged with violating section 18-18-403.5, which states in pertinent part that "[e]xcept as authorized by part 1 or 3 of article 42.5 of title 12, C.R.S., part 2 of article 80 of title 27, C.R.S., section 18-1-711, section 18-18-428(1)(b), or part 2 or 3 of this article, it is unlawful for a person knowingly to possess a controlled substance." § 18-18-403.5(1).
¶ 15 Defendant asks us to consider section 18-18-413 as an affirmative defense to section 18-18-403.5. Under the circumstances presented here, we are unpersuaded that section 18-18-413 is an affirmative defense to section 18-18-403.5. Rather, section 18-18-413 is itself a separate offense, and the exception for "a person acting at the direction of the legal owner of the controlled substance" is an element the prosecution must disprove when charging someone with a violation of that section. See Reed , 932 P.2d at 844 ().
¶ 16 Defendant relies on Whaley , 159 P.3d at 759, for her argument that section 18-18-413 is an affirmative defense available to her. In Whaley , the defendant was charged with possession under section 18-18-405(1)(a), C.R.S. 2006.2 A division of this court concluded that the "prescription exception" codified in section 18-18-302(3)(c) was an affirmative defense to possession under section 18-18-405(1)(a), C.R.S. 2006. 159 P.3d at 760. Under section 18-18-302(3)(c), a "person may ‘lawfully possess controlled substances under this article’ if he or she is ‘in possession of any controlled substance pursuant to a lawful order of a practitioner.’ " Id. at 759 (quoting § 18-18-302(3)(c), C.R.S. 2006 ). Because section 18-18-405, C.R.S. 2006, contained exceptions to a violation of the statute, id. at 758 (), and section 18-18-302(3)(c) was within "part ... 3 of this article," the division concluded that section 18-18-302(3)(c) was an affirmative defense, id. at 760. The division reasoned that because the defendant requested, and the trial court refused, to instruct the jury that it was the prosecution's burden to disprove beyond a reasonable doubt evidence that the defendant attempted to gain "possession of the controlled substance pursuant to a lawful order of a practitioner," reversal and retrial were necessary. Id.
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