People v. Gutierrez

Decision Date19 January 1981
Docket NumberNo. 79SA370,79SA370
Citation622 P.2d 547
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jesus Franco GUTIERREZ, Defendant-Appellant.
CourtColorado Supreme Court

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Susan P. Mele-Sernovitz, Asst. Atty. Gen., Denver, for plaintiff-appellee.

J. Gregory Walta, State Public Defender, Stephen E. Kapnik, Sp. Deputy State Public Defender, Denver, for defendant-appellant.

LOHR, Justice.

A jury convicted the defendant, Jesus Gutierrez, of felony menacing, section 18-3-206, C.R.S. 1973 (1978 Repl. Vol. 8), and unlawful use of an incendiary device in the commission of a felony, section 18-12-109(4), C.R.S. 1973 (1978 Repl. Vol. 8). In the second portion of the bifurcated trial, that same jury found that the defendant had been convicted of three prior felonies as charged, and he was adjudged an habitual criminal, section 16-13-101(2), C.R.S. 1973 (1978 Repl. Vol. 8) (the big habitual criminal act). Subsequently, he pled guilty to second-degree burglary, section 18-4-203, C.R.S. 1973 (now in 1978 Repl. Vol. 8).

On appeal, the defendant asserts that his convictions for felony menacing and unlawful use of an incendiary device should be reversed because evidence of offenses other than those for which he was being tried was received, and because a mistrial was denied notwithstanding allegedly prejudicial remarks by the district attorney during closing argument. The defendant also challenges the findings and sentence under the big habitual criminal act, alleging that one of the underlying convictions was not properly proved; that on its face that act violates constitutional requirements prohibiting cruel and unusual punishments and mandating equal protection of the laws; and that the big habitual criminal act is otherwise unconstitutional as applied to this defendant. Finally, on the grounds of newly discovered evidence, the defendant claims that the trial court erred in refusing to grant a new trial on the felony menacing and incendiary device charges, and in refusing to permit him to withdraw his plea of guilty to second-degree burglary. We affirm each of the convictions as well as the habitual criminal adjudication.

The substantive counts in the information were based on several incidents which occurred in Denver during the evening of August 2 and the early morning hours of August 3, 1977. 1 Between 7:00 and 9:00 p. m., the defendant and his brother Ramon, armed with knives, sought to force their way into the home of Heriberto Lopez, the defendant's brother-in-law, and his wife Anna. Unable to gain entry, and hearing Heriberto call for his gun, they returned to their car, circled the block, and fired several shots, driving off when Heriberto fired his own gun. Later that evening the defendant returned and threw two Molotov cocktails at the adjoining duplex apartment occupied by Heriberto's brother, Juan, his wife Bertha, and their children. Juan was absent at the time. The incendiary devices broke a window and caused minor fire damage to a wall and curtain.

Sometime before 1:00 a. m., the defendant and his brother drove to the home of Albert Roybal, the father of Ramon's girlfriend. Ramon went to the door and tried to persuade Mr. Roybal to come outside. Roybal refused, and, when Ramon would not leave, Roybal obtained a knife and backed Ramon toward his truck. At this, the defendant came out of the truck, and Roybal returned to his house and attempted to call the police. Ramon and the defendant then burst through the unlocked door, and the defendant attacked Mr. Roybal with a machete or large knife, inflicting a severe head wound. Mrs. Roybal called the police and named the defendant as her husband's assailant. The defendant was arrested at his home shortly after the incident at the Roybal residence. Mrs. Roybal was taken by the police to the scene of the arrest and there identified the defendant as her husband's attacker.

The trial of Ramon Gutierrez was severed from the defendant's trial. 2 The trial court then granted the defendant's motion to sever the assault and burglary counts (the Roybal incident) from his trial on the menacing and firebombing counts (the Lopez incidents). The latter, together with the habitual criminal counts, were tried first. The prosecution's principal witnesses were Heriberto, Anna, Juan, and Bertha Lopez. On cross-examination of the Lopezes, defense counsel elicited testimony which suggested that, because of family strife, the Lopezes had harbored hostile feelings toward the defendant before the August 2 incidents. The defendant's theory of the case was that the Lopezes had fabricated the incidents on which the charges were based.

The defendant presented an alibi defense. His witnesses testified that they had been drinking with the defendant at his home from around 11:00 a. m. on August 2 until his arrest early the next morning. According to their testimony, the defendant left the house only twice, to buy beer at a nearby liquor store, and was accompanied by an alibi witness on each occasion.

Following a lengthy in camera hearing and over the defendant's objection, the People called Albert and Susan Roybal and the police officer who had investigated the Roybal incident as rebuttal witnesses. After the judge properly cautioned the jury that the sole purpose for which evidence of the Roybal incident could be considered was to rebut the testimony of the defendant's witnesses the Roybals told of the defendant's arrival at their home between midnight and 1:00 a. m., his uninvited entry, his attack on Mr. Roybal, and Mr. Roybal's injuries. The officer recounted the Roybals' statements identifying the defendant as the person who assaulted Mr. Roybal, confirmed the extent of Mr. Roybal's head injuries, and told of Mrs. Roybal's eyewitness identification of the defendant as her husband's assailant during the early morning hours of August 3 after being transported by the police to the scene of the defendant's arrest.

The jury convicted the defendant of the charges based on the Lopez incidents, and found the habitual criminal counts to have been established. In accordance with the mandatory provisions of the big habitual criminal act, section 16-13-101(2), C.R.S. 1973 (1978 Repl. Vol. 8), the trial court then sentenced him to life imprisonment. Thereafter, the defendant pled guilty to second-degree burglary in exchange for dismissal of the other charges arising from the Roybal incident. 3

Several months later, but before sentencing on the burglary charge, the defendant filed motions for a new trial on the menacing, incendiary device, and habitual criminal counts and to withdraw his plea of guilty to the burglary count, all based on newly discovered evidence. That evidence consisted of the statement of a reformatory inmate that Ramon Gutierrez had confided that his "other brother," not the defendant, committed the crimes with Ramon; a statement dictated by Ramon that his brother Raul Gutierrez participated in the menacing and firebombing incidents and assaulted Albert Roybal; and Raul's affidavit that he, not the defendant, firebombed the Lopez duplex and assaulted Albert Roybal.

Ramon Gutierrez testified consistently with his written statement at an evidentiary hearing on the motions. Raul Gutierrez, who had been subpoenaed for the hearing, failed to appear; however, his affidavit was admitted into evidence. Several prosecution witnesses again identified the defendant, in court, as the person who had committed the acts charged in the information. The trial court denied the defendant's motions and sentenced him to ten to fifteen years in the Colorado State Penitentiary on the second-degree burglary count, the sentence to run concurrently with the mandatory life sentence.


The defendant contends that the admission of evidence of the Roybal incident to rebut his alibi defense was reversible error. We do not agree.

Evidence of crimes other than those for which a defendant is on trial is inadmissible if offered to prove that the accused has a character defect which makes it more probable that he committed the act in question. "Evidence of prior acts is never admissible to show the propensity of the accused to commit crimes." People v. Honey, Colo., 596 P.2d 751, 754, n. 2 (1979); see Stull v. People, 140 Colo. 278, 344 P.2d 455 (1959); C.R.E. 404(b). However, if offered for another purpose, evidence of other criminal transactions may be admissible. In such cases its admissibility depends on two factors: first, strict compliance with the procedural guidelines outlined in Stull v. People, supra, and, second, satisfaction of the substantive criteria enumerated in People v. Honey, supra. Honey provides:

"(T)he court must determine if the substantive value of the evidence merits its consideration by the jury. In this respect, the court must address three issues: (1) Is there a valid purpose for which the evidence is offered? (2) Is the evidence relevant to a material issue in the case? (3) Does the probative value of the evidence of the prior act, considering the other evidence which is relevant to the issue, outweigh the prejudice which would result from its admission?"

Colo., 596 P.2d at 754.

There can be no question but that the first two Honey criteria were satisfied here. The evidence of the Roybal incident was offered to refute, counteract, or disprove the defendant's alibi evidence. That is a valid purpose. People v. Lewis, 180 Colo. 423, 428, 506 P.2d 125, 127 (1973); Moore v. People, 171 Colo. 338, 467 P.2d 50 (1970). The relevance of determining the credibility of testimony that the defendant was home all evening and therefore could not have committed the crimes as charged is apparent. The issue on which the admissibility of the description of the Roybal incident turns is whether the third Honey criterion, the balancing...

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