People v. Naranjo, No. 89CA938

• Docket Nº: No. 89CA938
• Citation: 821 P.2d 836
• Case Date: May 23, 1991
• Court: Court of Appeals of Colorado

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821 P.2d 836 The PEOPLE of the State of Colorado, Plaintiff-Appellant,
v.
Sammy NARANJO, Defendant-Appellee. No. 89CA938. Colorado Court of Appeals,
Div. V. May 23, 1991.
Rehearing Denied July 18, 1991.
Certiorari Granted Dec. 23, 1991.

Stuart A. VanMeveren, Dist. Atty., Loren B. Schall, Asst. Dist. Atty., Daniel E. Quinn, Deputy Dist. Atty., Fort Collins, for plaintiff-appellant.

David F. Vela, State Public Defender, Jonathan S. Willett, Thomas R. Williamson, Deputy State Public Defenders, Denver, for defendant-appellee.

Opinion by Judge DUBOFSKY.

The People appeal from the trial court's order granting a new trial to defendant, Sammy Naranjo. We affirm.

In 1977, following a jury trial in which he did not testify, defendant was convicted of first degree sexual assault and first degree

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kidnapping. He was sentenced to concurrent terms of from forty-five to fifty years and to life imprisonment, respectively, for these offenses. Following a prior direct appeal, the kidnapping conviction was reduced to second degree, and, on remand, the life sentence was reduced to up to 10 years.

Defendant filed numerous motions for post-conviction relief, culminating in a hearing in 1988. Following the hearing, the trial court ordered a new trial indicating, inter alia, that defendant had not knowingly and voluntarily waived his right to testify.

On appeal, the People contend that the trial court erred in finding no valid waiver and, alternatively, that any error regarding defendant's trial was harmless in light of the overwhelming evidence against him.

I.

As a threshold issue, we must determine whether this court has jurisdiction to decide if the trial court erred in granting a new trial to defendant.

In People v. Cochran, 176 Colo. 364, 490 P.2d 684 (1971) and People v. Campbell, 738 P.2d 1179 (Colo.1987), our supreme court determined that a trial court order granting a new trial in a criminal case was not appealable.

The People claim, however, that they are entitled to proceed with this appeal because, rather than concerning an unappealable issue of fact, see People v. Ledesma, 171 Colo. 407, 468 P.2d 27 (1970), it involves a question of law, and pursuant to § 16-12-102(1), C.R.S. (1986 Repl.Vol. 8A), such appeals are permissible.

Crim.P. 35(c)(3) states that an order of a trial court granting or denying a Crim.P. 35 motion is a final order reviewable on appeal. We therefore determine that since the issues presented here were brought pursuant to Crim.P. 35(c), we have jurisdiction to decide this appeal.

II.

The People argue that the evidence does not support the trial court's determination that defendant's constitutional right to testify was violated. The People further argue that because People v. Curtis, 681 P.2d 504 (Colo.1984) is not retroactive, it was not erroneous for defense counsel to determine if defendant would testify. We disagree with these arguments.

Here, the trial court found:

"At the original trial, the defendant was not advised of his right to testify and had no knowledge of it. He was not advised that he could override the advice of his attorney not to testify. Defendant wanted to testify." (emphasis added)

In Martinez v. People, 173 Colo. 515, 480 P.2d 843 (1971), decided approximately five years prior to the original trial in this matter, the court held that it was defendant's right, not the attorney's, to determine if defendant testified at trial. This determination was based on the principle now set out in 1 ABA, Standards for Criminal Justice, Standard 4-5.2 (2d ed. 1982), which states that one of the crucial decisions to be made by the accused after full consultation with defense counsel is whether to testify in his own behalf. See also Steward v. People, 179 Colo. 31, 498 P.2d 933 (1972).

Here, the evidence is essentially undisputed that defense counsel made the decision that defendant would not testify. Moreover, the evidence indicates, and the court found, that defendant expressed a desire to testify. Therefore, from this record, there is adequate evidence to support the trial court's conclusion that defendant did not make an intelligent and knowing waiver of his right to testify. Furthermore, the evidence supports the trial court's conclusion that defendant wanted to testify but was denied his constitutional right to do so. See Lamb v. People, 174 Colo. 441, 484 P.2d 798 (1971); People v. Pietrantonio, 727 P.2d 407 (Colo.App.1986).

III.

The People next argue, however, that in light of the overwhelming evidence against defendant, the error, if any, was

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harmless beyond a reasonable doubt. We conclude that such error is not subject to a harmless error...