People v. Hernandez

• Decision Date: 07 June 2021
• Docket Number: Supreme Court Case No. 20SA322
• Citation: 488 P.3d 1055
• Court: Colorado Supreme Court
• Parties: In Re: The PEOPLE of the State of Colorado, Plaintiff, v. Juan Johnny HERNANDEZ, Defendant.

488 P.3d 1055

In Re: The PEOPLE of the State of Colorado, Plaintiff,

v.Juan Johnny HERNANDEZ, Defendant.

Supreme Court Case No. 20SA322

Supreme Court of Colorado.

June 7, 2021

Attorneys for Plaintiff: Brian Mason, District Attorney, Seventeenth Judicial District, Cameron Munier, Senior Deputy District Attorney, Mike Whitney, Senior Deputy District Attorney, Brighton, Colorado

Attorneys for Defendant: Danielle M. McCarthy, P.C., Danielle M. McCarthy, Denver, Colorado, Law Office of Jessica Eve Jones, LLC, Jessica E. Jones, Denver, Colorado, Walta LLC, Mark G. Walta, Denver, Colorado

Attorneys for Respondent Honorable Tomee Crespin: Philip J. Weiser, Attorney General, Emily B. Buckley, Assistant Attorney General, Denver, Colorado

En Banc

JUSTICE BERKENKOTTER delivered the Opinion of the Court.

¶1 In this original proceeding, defendant Juan Johnny Hernandez asks us to conclude that the trial court's order allowing the prosecution's witnesses to testify live via a videoconference platform during his "make my day" immunity hearing ("MMD hearing") violated his confrontation right, his right to a public hearing, and the spirit of Crim. P. 43. Hernandez also asks us to conclude that he was denied equal protection of the law based on his assertion that other judicial officers might have ruled differently.

¶2 We issued a rule to show cause to consider, as a matter of first impression, whether a trial court may properly allow an MMD hearing to proceed with live witness testimony using a videoconference platform instead of in-person courtroom testimony due to specific public health concerns related to the COVID-19 pandemic. We conclude that the trial court was well within its authority to allow the hearing to proceed via a videoconference platform and that such a proceeding does not violate Hernandez's confrontation right. We additionally conclude that Hernandez failed to preserve his public hearing argument. Finally, we conclude that the trial court does not violate Hernandez's right to equal protection by allowing witnesses to appear at the hearing via WebEx,¹ even if other judges might permit entirely in-person proceedings. Accordingly, we discharge the rule to show cause.

I. Facts and Procedural History

¶3 Hernandez, following an incident at his apartment in October 2019, was charged with attempted first degree murder, possession of a weapon by a previous offender, two counts of crimes of violence, and one count of possession with intent to manufacture or distribute a controlled substance.

¶4 On March 16, 2020, due to the rapidly spreading novel coronavirus, COVID-19, the Chief Justice, pursuant to the authority granted in Chief Justice Directive 95-01, issued the Order Regarding COVID-19 and Operation of Colorado State Courts, ceasing the normal operation of Colorado state courts and suspending jury calls through April 2020. The order was subsequently expanded and extended to preclude individuals from being summoned for jury service until August 2020. These decisions were predicated on guidance from public health officials and were implemented for the protection of the public's health, safety, and welfare.

¶5 On March 19, 2020, to further address the rapidly changing circumstances due to COVID-19, this court amended and adopted a change to Crim. P. 43. The Amendment, known as the "Public Health Crisis Exception," stated: "If the court finds that a public health crisis exists, it may, in its discretion and with the defendant's oral or written consent, allow the defendant to appear by an interactive audiovisual device for a preliminary hearing ...." Crim. P. 43(f)(2) (effective Mar. 19, 2020) (emphasis added).

¶6 Rule 43 was subsequently amended to extend the use of an interactive audiovisual device, under this paragraph, to include "any proceeding that does not involve a jury," and to require that defense counsel have a means by which to confer confidentially with the defendant and that the proceeding remain "open to the public ... allow[ing] members of the public (including victims) to hear or watch." Crim. P. 43(f)(2) (effective Apr. 7, 2020).

¶7 Throughout this timeframe, chief judges around the state began to issue the first of many local administrative orders addressing the impact of COVID-19 on court operations in light of the unique and specific circumstances in each of their judicial districts.²

¶8 In July 2020, Hernandez filed a pretrial motion for immunity under section 18-1-704.5, C.R.S. (2020)—otherwise known as the "make my day" law—and requested a hearing on the motion. The prosecution opposed Hernandez's motion, and, due to the ongoing public health threat posed by the COVID-19 pandemic, filed a request to proceed by way of WebEx. In the prosecution's motion to proceed via video testimony, it requested permission to have all parties appear and testify remotely.³ Alternatively, the motion sought to allow the prosecution and its hearing witnesses, three police officers, to appear at the MMD hearing by "interactive audiovisual device." Hernandez objected to conducting the hearing over a videoconference platform and asserted that he had a right to be physically present and accompanied by counsel and that virtual testimony violated his Sixth Amendment confrontation right. He further asserted that, because other criminal cases in the Seventeenth Judicial District were proceeding in person, the trial court would violate his equal protection rights if it allowed the prosecution to appear, and the witnesses to testify, virtually.

¶9 Citing Chief Judge Emily Anderson's Seventh Amended Administrative Order Regarding Court Operations Under COVID-19 Effective August 31, 2020-October 2, 2020, the trial court granted the prosecution's motion to proceed using live videoconference testimony. In its written order, the trial court cited the provision stating:

Judicial officers shall continue to conduct proceedings via remote technology wherever possible. Remote technology continues to be the recommended and preferred means of conducting proceedings. Judicial officers, in their discretion and as judicial resources allow, may continue to conduct proceedings in all docket types, by remote means only, through October 2, 2020. No judicial officer is required by this Order to hold any in-person proceedings.

(Emphases added.)

¶10 The trial court permitted the prosecution to appear, and its witnesses to testify, remotely via videoconference technology "due to the current public health crisis," because the "physical appearances of witnesses creates a physical risk due to the rate of contagion and transfer of C[OVID]-19." Further, the trial court held that the Colorado Rules of Criminal Procedure did not prohibit the use of video testimony by witnesses at evidentiary hearings and that the Colorado Rules of Civil Procedure expressly permit absentee testimony under some circumstances. It found such circumstances were met in connection with the MMD hearing. However, because Hernandez did not consent to appear remotely, the trial court directed that he and his counsel attend the hearing in person, as required under Crim. P. 43.

¶11 Hernandez then filed a petition invoking our original jurisdiction under C.A.R. 21. After reviewing the petition, we issued a rule to show cause.

II. Analysis

¶12 We begin by discussing our jurisdiction to hear this matter pursuant to C.A.R. 21. We then detail the applicable law concerning defendants' confrontation and equal protection rights. Applying the applicable law to the facts of this case, we conclude that the trial court does not violate Hernandez's confrontation right by permitting the prosecution to appear, and its witnesses to testify, via videoconference technology at an MMD hearing. We also conclude that Hernandez failed to preserve his argument that a hybrid videoconference hearing⁴ would violate his right to a public hearing. Finally, we conclude that the decision to proceed with witnesses appearing virtually via videoconferencing technology does not violate Hernandez's right to equal protection under the law. Accordingly, we discharge the rule to show cause.

A. Original Jurisdiction

¶13 It is entirely within our discretion to exercise original jurisdiction pursuant to C.A.R. 21. See C.A.R. 21(a)(1) ("Relief under this rule ... is a matter wholly within the discretion of the supreme court."); Fognani v. Young , 115 P.3d 1268, 1271 (Colo. 2005). Original relief under C.A.R. 21 provides "an extraordinary remedy that is limited in both purpose and availability." People v. Rosas , 2020 CO 22, ¶ 19, 459 P.3d 540, 545 (quoting Villas at Highland Park Homeowners Ass'n v. Villas at Highland Park, LLC, 2017 CO 53, ¶ 22, 394 P.3d 1144, 1151 ). We have generally determined this relief to be appropriate "when an appellate remedy would be inadequate, when a party may otherwise suffer irreparable harm, [or] when a petition raises issues of significant public importance that we have not yet considered." People v. Huckabay, 2020 CO 42, ¶ 9, 463 P.3d 283, 285 (alteration in original) (quoting People v. Kilgore, 2020 CO 6, ¶ 8, 455 P.3d 746, 748 ).

¶14 Hernandez argues that the exercise of original jurisdiction is appropriate in this case because he would be unable to challenge the trial court's ruling on immunity and his constitutional claims through direct appeal. He further contends that because this case presents an issue of first impression arising out of the COVID-19 pandemic, it constitutes an issue of significant public importance. We agree.

¶15 First, this court has previously ruled that "denying immunity from prosecution under section 18-1-704.5 may not be reviewed on appeal after trial." Wood v. People, 255 P.3d 1136, 1138 (Colo. 2011) ; see also id. at 1142 ("[T]he proper avenue for seeking review of such a pretrial order is under C.A.R. 21 ...."). Second, this question is one of significant public importance due to the sweeping, constantly evolving nature of the COVID-19 pandemic and its potential impact on defen...