People v. Lucero, No. 83CA0156

• Docket Nº: No. 83CA0156
• Citation: 714 P.2d 498
• Case Date: October 17, 1985
• Court: Court of Appeals of Colorado

Page 498

714 P.2d 498 The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Edward D. LUCERO, Defendant-Appellant. No. 83CA0156. Colorado Court of Appeals,
Div. III. Oct. 17, 1985.
Rehearing Denied Nov. 21, 1985.
Certiorari Denied March 3, 1986.

Page 501

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Maureen Phelan, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, Colo. State Public Defender, Peggy O'Leary, Deputy State Public Defender, Denver, for defendant-appellant.

SMITH, Judge.

Defendant, Edward Lucero, appeals the judgment of conviction entered upon jury verdicts finding him guilty of second degree murder and first degree assault. Lucero contends the trial court erred by denying him a continuance until a defense witness could testify, by denying defense counsel's motion to withdraw, by interfering with plea negotiations and thereby showing its prejudice and bias, and by denying his motions for mistrial for alleged prosecutorial misconduct in opening and closing arguments. Lucero also claims the court erred by failing to grant a mistrial because of a prospective juror's remarks, by incorrectly instructing the jury, and by imposing an excessive and unjustified aggravated sentence for his second degree murder conviction. Lucero as well argues that the sentence imposed upon him for first degree assault is unconstitutional. We affirm.

The prosecution adduced evidence showing the following events occurred on the night of the killing. Lucero's brother-in-law, Montoya, and another man got into a fist-fight; Lucero held a closed knife in his hand as he watched. Others broke the fight up after some five minutes.

One Ortivez then began "calling down" Montoya. Montoya pushed Ortivez, but a fight was averted when someone intervened and escorted Ortivez away from Montoya. Testimony concerning subsequent events is contradictory.

Lucero apparently followed Ortivez and shoved him; they fought. Lucero then either threw his knife to the ground to fight without it or dropped it trying to open it. He however recovered his knife, lunged at Ortivez, and stabbed him once. The unarmed victim, Leonard Sanchez, then intervened, kicked Lucero to draw his attention, and retreated. Lucero attacked Sanchez and stabbed him seven times; he died within a few hours.

I.

At trial, Lucero contended that he acted in self-defense when provoked by Ortivez and Sanchez. However, during pretrial hearings, Ortivez testified that Lucero's attack and subsequent stabbings were unprovoked by him. Lucero therefore moved the court for a continuance until he could secure testimony of one Martinez who was charged with stabbing Ortivez during an unrelated later altercation with him. Lucero asserted that Martinez would testify that Ortivez had a violent character which was both provocative and threatening. Martinez however intended to invoke his privilege against testifying until disposition of his own case at some indeterminable future time.

Lucero argues that the trial court abused its discretion when it denied his motion for continuance until Martinez could testify. He contends that a continuance was required both because Martinez' testimony is admissible under CRE 404(a)(2) and because it was critical to his self-defense theory. We hold that the trial court did not abuse its discretion in refusing to grant a continuance because the proffered testimony was inadmissible.

Page 502

Evidence of prior violent acts by the victim is admissible as direct evidence of an essential element of self defense, that is, the reasonableness of a defendant's belief in the imminent use of unlawful physical force against him. People v. Jones, 675 P.2d 9 (Colo.1984); CRE 404 and 405. But such evidence is admissible only if the defendant knew of the victim's prior violence at the time of the offense. People v. Ferrell, 200 Colo. 128, 613 P.2d 324 (1980).

Here, the trial court found that Martinez' testimony related solely to an incident which occurred some eight months after Lucero stabbed Ortivez. Moreover, the court found that Lucero failed to show that, at the time of the instant assault, he had any knowledge of Ortivez's allegedly violent character. Under these facts, the court properly denied Lucero's motion for continuance because the proffered testimony would have been inadmissible under CRE 404 and 405. See People v. Jones, supra.

Lucero also argues that the trial court improperly denied his counsel's motion to withdraw. He contends that counsel's simultaneous representation of himself and of Martinez denied him effective assistance of counsel since counsel compromised his independent professional judgment by advising Martinez not to testify in Lucero's behalf until disposition of his own case. In light of our above ruling that Martinez' testimony would have been inadmissible, and further because joint representation does not per se violate defendant's right to effective assistance of counsel, we conclude this argument is without merit. See Armstrong v. People, 701 P.2d 17 (Colo.1985); cf. People v. Castro, 657 P.2d 932 (Colo.1983).

II.

Lucero next argues that the trial court improperly denied his motion for substitution of judges. The prosecution and defense counsel twice presented the court with proposed plea agreements. The court found the first proposed agreement unacceptable and took the second under advisement. The court later advised the prosecutor that, while the charging concessions made in the modified plea agreement were acceptable, the sentencing concessions were not. The court then indicated what sentencing provisions it would accept and instructed the prosecutor to so inform defense counsel. Lucero contends that this constituted improper participation in plea discussions and evinced bias and prejudice on the part of the trial court. We disagree.

Section 16-7-302(3), C.R.S. (1978 Repl.Vol. 8) provides that:

"Notwithstanding the reaching of a plea agreement between the district attorney and defense counsel or defendant, the judge in every case should exercise an independent judgment in deciding whether to grant charge and sentence concessions."

Thus, the trial court is not bound by plea-bargain agreements proposed by the parties; instead, the court is statutorily required to reach its decision to approve or disapprove proposed concessions based upon its independent judgment. Sober v. District Court, 197 Colo. 250, 592 P.2d 400 (1979).

We reject Lucero's contention that the trial court improperly participated in the plea-bargaining process. In its response to the two proposed plea-bargaining agreements, the court merely exercised its statutory authority both in denying proposed sentence concessions and in deciding what minimal sentencing concessions it would accept. It neither threatened nor coerced Lucero to agree to any concessions. Cf. People v. Clark, 183 Colo. 201, 515 P.2d 1242 (1973). Nor did the court express any sentiment or...