People v. Montez
| Decision Date | 18 March 2010 |
| Docket Number | No. 07CA0139.,07CA0139. |
| Citation | 280 P.3d 9 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Mark Anthony MONTEZ, Defendant–Appellant. |
| Court | Colorado Court of Appeals |
OPINION TEXT STARTS HERE
John W. Suthers, Attorney General, Ryan A. Crane, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.
Douglas K. Wilson, Colorado State Public Defender, Elizabeth Griffin, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.
Opinion by Judge HAWTHORNE.
Defendant, Mark Anthony Montez, appeals the judgment of conviction entered on jury verdicts finding him guilty of two first degree burglary counts, two possession of a weapon by a previous offender counts, one theft count, and six habitual criminal counts based on prior felony convictions. We affirm the convictions and remand the case for the court to correct the mittimus because we conclude that the burglary convictions merge.
The following facts, viewed in the light most favorable to the prosecution, were established at trial. Defendant broke a home's back window, entered and ransacked the residence, and fled with approximately $150 and a gun case containing two unloaded shotguns.
Defendant contends that reversal is required because the trial court failed to conduct a proper analysis under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We discern no basis for reversal.
Apparently relying on Batson, defendant objected after the prosecution used peremptory challenges to excuse the only two jury panel members with Hispanic surnames. The prosecutor stated he excused one member because, in response to a question about who her hero was, she chose herself. He found her answer “very odd and eccentric ... and [it] did not go to the values that [he] thought would make a good juror.” The prosecutor explained that he excused the second panel member because she “exhibited very poor body language in response to questions about reasonable doubt ... [and] was shaking her head with the defense.” He further opined that she appeared Caucasian and might be married to someone with a Hispanic surname.
After the court asked defense counsel whether he “would ... like to follow-up,” he responded that it was inappropriate to ask about a panel member's race. He further stated that she “looked Hispanic to [him],” reiterated that the prosecutor excused the only two Hispanics on the jury panel, and emphasized that defendant is also Hispanic.
The court observed that the prosecutor used peremptory challenges to strike the only two jury panel members with Hispanic surnames and noted that defendant also has a Hispanic surname. However, it concluded,
Trial courts must apply a three-step process in evaluating a Batson challenge. See People v. Robinson, 187 P.3d 1166, 1172 (Colo.App.2008). First, the party opposing the challenge must make a prima facie case of racial discrimination. Second, if the opponent meets that requirement, the burden of production shifts to the challenge's proponent to offer a race-neutral explanation. Third, if the proponent meets that burden, the opponent must have the opportunity to rebut the prosecutor's explanation, and the trial court must determine whether the opponent has proved purposeful racial discrimination. Id.;People v. Vieyra, 169 P.3d 205, 211 (Colo.App.2007). “[T]he ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” Robinson, 187 P.3d at 1172 (quoting Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)).
We review de novo a trial court's rulings on the inquiry's first and second steps, and we defer to its ultimate resolution in step three, reversing only for clear error. Vieyra, 169 P.3d at 211.
Contrary to defendant's interpretation, we read the trial court's statement, “I do not find that two people make a Batson challenge,” to mean that the court, after conducting a three-step analysis, did not find that the two panel members were challenged for discriminatory reasons. The court made a specific factual finding, not a general legal conclusion. See People v. Collins, 187 P.3d 1178, 1184 (Colo.App.2008) (). We discern no basis for reversal because the trial court conducted a Batson analysis and concluded that defendant had not carried his burden to prove purposeful racial discrimination.
First, defendant offered his reasons for objecting to the prosecutor's peremptory challenges. Next, the prosecutor proffered race-neutral explanations for exercising the challenges. In response to the court's invitation to “follow up,” defendant essentially repeated his objection that the two challenged jurors were the “only two Hispanic people on the jury panel” but did not offer any other proof of purposeful racial discrimination. When the trial court found that two people do not make a Batson challenge and stated, “[the prosecutor] has given us no race-related reasons for [the peremptory challenges],” it engaged in the third step of its Batson analysis. Having heard the prosecutor's race-neutral explanation, and defendant's rebuttal, the court concluded that the explanationwas credible and defendant did not prove that the challenges were racially motivated.
Because step three involves determining credibility, the trial court is in a superior position to evaluate whether discrimination occurred, and absent clear error we will not substitute our judgment for the trial court's. See Snyder v. Louisiana, 552 U.S. 472, 477, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008) (). We therefore conclude that the trial court did not clearly err in determining that defendant had not proved purposeful racial discrimination.
Defendant next contends that his first degree burglary convictions must be vacated because there was insufficient evidence that he was “armed” with a deadly weapon. We disagree.
Appellate courts review de novo whether the evidence, viewed in the light most favorable to the prosecution, was “sufficient in both quantity and quality to sustain the convictions.” Dempsey v. People, 117 P.3d 800, 807 (Colo.2005). It is the prosecution's burden to establish a prima facie case of guilt, which requires it to introduce “sufficient evidence to establish guilt—no more, no less.” Id. (quoting People v. Bennett, 183 Colo. 125, 130, 515 P.2d 466, 469 (1973)). The evidence must be both “substantial and sufficient to support a conclusion by a reasonable mind that [the] defendant is guilty of the charge beyond a reasonable doubt.” Bennett, 183 Colo. at 130, 515 P.2d at 469. The court must give full consideration to the jury's right to draw all justifiable factual inferences from the evidence. Id. The fact finder determines the evidence's weight. People v. McIntier, 134 P.3d 467, 471 (Colo.App.2005). An appellate court cannot sit as a thirteenth juror and set aside a verdict simply because it could have reached a different conclusion. Id. Where “reasonable minds could differ, the evidence is sufficient to sustain a conviction.” People v. Rector, 226 P.3d 1170, 1176 (Colo.App.2009).
We therefore examine the evidence here to determine whether it reasonably satisfies the definition of “armed” to support the jury's first degree burglary verdicts.
“A person commits first degree burglary if the person knowingly enters unlawfully ... in a building or occupied structure with intent to commit therein a crime ... and if in effecting entry or while in the building or occupied structure or in immediate flight therefrom, the person ... is armed with ... a deadly weapon.” § 18–4–202(1), C.R.S.2009. An unloaded shotgun is a deadly weapon. See§ 18–1–901(3)(e)(I), C.R.S.2009. The term “armed” is not defined by statute; however, Colorado case law requires that the deadly weapon must be “easily accessible and readily available for use by the defendant for either offensive or defensive purposes.” People v. Loomis, 857 P.2d 478, 482 (Colo.App.1992) (quoting State v. Hall, 46 Wash.App. 689, 732 P.2d 524, 528 (1987)).
Here, the evidence showed that defendant removed a gun case containing two unloaded shotguns from the home. Witnesses testified that the gun case resembled a guitar case. There was no ammunition in the case, nor was any found on defendant's person. The evidence included two photographs of the gun case; one showing the case open with the two shotguns inside it and the other showing the case closed. Neither photograph revealed a lock or locking mechanism on the case, and there was no other evidence that the case was locked or otherwise rendered difficult or impossible to open while in defendant's possession.
Considering this evidence in the light most favorable to the prosecution, we conclude that the jury could reasonably have inferred that opening the case and making the shotguns available could have been accomplished reasonably quickly and would be no more difficult or time-consuming than accessing an unlocked guitar case's contents. Accordingly, we conclude that there was sufficient evidence to support a jury conclusion, beyond a reasonable doubt, that the deadly weapons were easily accessible and readily available for use by defendant.
We reject defendant's assertion that People v. Moore, 841 P.2d 320 (Colo.App.1992), requires a different conclusion. The division in Moore did not rely on the term “a...
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