People v. Trujillo, Court of Appeals No. 10CA0105

• Citation: 2014 COA 72,338 P.3d 1039
• Decision Date: 05 June 2014
• Docket Number: Court of Appeals No. 10CA0105
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. William Roger TRUJILLO, Defendant–Appellant.
• Court: Court of Appeals of Colorado

338 P.3d 1039

2014 COA 72

The PEOPLE of the State of Colorado, Plaintiff–Appellee

v.William Roger TRUJILLO, Defendant–Appellant.

Court of Appeals No. 10CA0105

Colorado Court of Appeals, Div. V.

Announced June 5, 2014

Certiorari Dismissed September 11, 2014

John W. Suthers, Attorney General, Nicole D. Wiggins, 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

Opinion by JUDGE FURMAN

¶ 1 Defendant, William Roger Trujillo, appeals the judgment of conviction entered after a jury found him guilty of second degree kidnapping, robbery, third degree assault, and menacing. He contends that his convictions must be dismissed because the trial court granted the prosecution a continuance beyond his speedy trial deadline to obtain the testimony of a crucial witness. In the alternative, he contends that his convictions should be reversed because the trial court erroneously admitted—over objection—excessive evidence about gangs. Because we disagree with his first contention, but agree in part with his second contention, we reverse and remand for a new trial.

I. The Dispute at Trial

¶ 2 The dispute at trial centered on one fundamental question: Did Trujillo or someone else commit the crimes?

¶ 3 At trial, the prosecution presented evidence of the following.

¶ 4 One evening, the victim and his friend, Marcelina Gonzales (M. Gonzales), attended a graduation party at a local bar. At approximately midnight, Trujillo and two other men, Jose Gonzalez (J. Gonzalez) (also referred to by his nickname, Pelon) and Jesus Rodriguez (also referred to by his nickname, Grumpy), entered the bar. M. Gonzales had known Trujillo and Rodriguez for years. She had dated both of them and referred to them as her “family.”

¶ 5 According to the victim, at some point that night, an unidentified patron of the bar said something offensive to M. Gonzales. She immediately told Trujillo, who engaged this patron in a fight. J. Gonzalez and Rodriguez joined Trujillo in this fight and the three men were subsequently kicked out of the bar.

¶ 6 The victim and M. Gonzales left the bar when it closed. As they were driving in the victim's truck, M. Gonzales said that she wanted cigarettes, so the victim stopped by his apartment for money. When he got back in his truck, M. Gonzales was on the phone and told the victim to take her to a particular 7–Eleven convenience store. When the victim refused, she pulled out a pocketknife and demanded that he take her there. When he insisted on knowing why, she cut his hand and told someone on the phone that he was hitting her. Eventually, they made their way to the 7–Eleven.

¶ 7 The victim testified that, when they arrived at the 7–Eleven, he saw Trujillo and two other men standing in the parking lot. As soon as the victim parked his truck, M. Gonzales opened her door and ran to the men. One of the men, whom the victim later identified as J. Gonzalez, then entered the victim's driver side door and forced the victim to the middle of the bench seat of the truck, while Trujillo entered from the passenger side and began assaulting the victim. J. Gonzalez drove off with the victim and Trujillo in the victim's truck, and M. Gonzales and another man followed them in another vehicle.

¶ 8 The victim also testified that, while they were driving, Trujillo and J. Gonzalez made death threats toward him and that, at one point, they stated, “This is what happens when you hit women.”

¶ 9 But, knowing that the passenger side door did not lock properly, the victim decided to escape. While the truck was going approximately thirty or forty miles per hour, the victim opened the passenger side door and jumped, taking Trujillo with him. Once they landed on the pavement and stopped skidding, the victim punched Trujillo in the face and started running.

¶ 10 As the victim ran, J. Gonzalez caught up to him in the truck and then started chasing him on foot; the victim testified that, at this moment, he remembered having a pocketknife. The victim pulled out the knife and stabbed J. Gonzalez in the face. The victim then ran and called 911.

At trial, M. Gonzales gave a similar account but minimized the role that Trujillo played in the crime. She testified as follows. Trujillo never entered the bar earlier in the night but was, instead, passed out in the back of a truck in the parking lot. And, Trujillo remained passed out in the back of the truck at the 7–Eleven while Rodriguez orchestrated the entire event. Rodriguez got in the passenger seat and assaulted the victim while J. Gonzalez got in the driver's side. When Trujillo woke later that morning, Rodriguez admitted to Trujillo that he had assaulted the victim.

¶ 12 M. Gonzales also testified that after the crimes Rodriguez held a knife to her throat and threatened to kill her if she talked; she believed him because “he was a very dangerous man.” She also was worried about her family.

¶ 13 But, the jury later heard that M. Gonzales had initially told police, absent a few details about what happened between the bar and the 7–Eleven, a story that was consistent with the victim's.

¶ 14 The prosecution also introduced evidence that Trujillo was affiliated with the Sureños gang in order to explain (1) that M. Gonzales changed her testimony out of fear of retaliation and (2) Trujillo's motive for joining in the attack on the victim. The jury also heard considerable evidence about this gang from police officers and an expert witness. This evidence will be discussed in Part III of this opinion.

II. Speedy Trial

¶ 15 We first consider whether Trujillo's convictions must be dismissed because the trial court granted the prosecution a continuance beyond the speedy trial deadline to obtain the testimony of a crucial witness, M. Gonzales. We conclude they should not.

¶ 16 Several requirements guide our analysis. The charges against a defendant must be dismissed if a defendant is not brought to trial on the issues raised by the complaint, information, or indictment within six months from the date of the entry of a not guilty plea. § 18–1–405(1), C.R.S.2013. But, certain delays are not included in the calculation of the six-month period, including the following:

[t]he period of delay not exceeding six months resulting from a continuance granted at the request of the prosecuting attorney, without the consent of the defendant, if:

I. The continuance is granted because of the unavailability of evidence material to the state's case, when the prosecuting attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that this evidence will be available at the later date.

§ 18–1–405(6)(g)(I).

¶ 17 The burden of compliance with the speedy trial statute is on the prosecution and the trial court. People v. Roberts, 146 P.3d 589, 593 (Colo.2006). Thus, the following must occur:

• The prosecution must make a sufficient record that all three elements of section 18–1–405(6)(g)(I) have been met. Id . at 593–94.

• The court must then evaluate the prosecution's statements and weigh the competing interests in reaching its conclusions. Id . at 594.

¶ 18 “We review a trial court's grant of a continuance pursuant to section 18–1–405(6)(g)(I)... for an abuse of discretion.” People v. Valles, 2013 COA 84, ¶ 21, ––– P.3d –––– (citing People v. Scialabba, 55 P.3d 207, 209 (Colo.App.2002) ). We will not disturb the trial court's findings granting a continuance if the record supports these findings. Id .

¶ 19 The prosecution moved to continue Trujillo's trial to secure M. Gonzales's testimony. The trial court granted the continuance, concluding that the “availability of [M. Gonzales] is crucial to the People's case” and that “absent her testimony it would be difficult for the [prosecution] to succeed in this case.” It also concluded that the circumstances in the case were sufficiently similar to those in People v. Koolbeck, 703 P.2d 673, 676 (Colo.App.1985), under which a continuance was granted. The court then reset Trujillo's trial to a date when the prosecution anticipated M. Gonzales's plea agreement would be finalized. (That date was within six months of the continuance.)

¶ 20 Trujillo's appeal challenges (a) the prosecution's exercise of due diligence to secure M. Gonzales's testimony and (b) whether reasonable grounds existed to believe M. Gonzales's testimony would be available at a later date.

A. Due Diligence

¶ 21 We conclude that the record supports the prosecution's exercise of due diligence to secure M. Gonzales's testimony because, in its motion to reconsider the continuance, the prosecution stated:

Defense counsel for [M. Gonzales] has represented to the Court that [she] is cooperative and willing to testify against her accomplices once her case is resolved. The plea agreement reached with [M. Gonzales] will be partially based on information she has provided in an unrelated unsolved case. The People have not been able to enter into a plea agreement as detectives have been working to corroborate the truthfulness of her statements. Detectives have acted with due diligence to investigate upon the information provided to them by [M. Gonzales]. The People have recently met with the assigned lead detective and his sergeant regarding the status of that investigation. As a result of that meeting additional detectives have been assigned to the investigation and a deadline for completion of October 5th, 2009 was agreed to.

And, at the hearing on the motion, the prosecution also stated that (1) it was close to reaching a plea agreement in M. Gonzales's case, but that the agreement was contingent on the accuracy of information she had provided in an unrelated case; and (2) it was actively working with law enforcement officials to corroborate M. Gonzales's information.

¶ 22 Yet, Trujillo argues that, in light of later precedent that the privilege against...