People v. Tun, Court of Appeals No. 17CA0315

Docket NºCourt of Appeals No. 17CA0315
Citation486 P.3d 490
Case DateMarch 18, 2021
CourtCourt of Appeals of Colorado

486 P.3d 490

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
Pedro Reynauldo TUN, Defendant-Appellant.

Court of Appeals No. 17CA0315

Colorado Court of Appeals, Division VI.

Announced March 18, 2021

Philip J. Weiser, Attorney General, Brian M. Lanni, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jessica A. Pitts, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant


¶ 1 Appellant, Pedro Reynauldo Tun, appeals a judgment of conviction finding him guilty of felony driving under the influence (DUI) and felony DUI per se, failing to display proof of insurance, driving an unregistered vehicle, driving after revocation prohibited (DARP), and driving under restraint (DUR). We previously issued an opinion affirming all of Tun's convictions except for failure to display proof of insurance. People v. Tun , (Colo. App. No. 17CA0315, Mar. 12, 2020) 2020 WL 1231231 (not published pursuant to C.A.R. 35(e) ). However, based on its decision in Linnebur v. People , 2020 CO 79M, 476 P.3d 734, the supreme court vacated our opinion and remanded the matter for reconsideration. Tun v. People , (Colo. No. 20SC322, Jan. 11, 2021) 2021 WL 96672 (unpublished order). We now reverse Tun's convictions for felony DUI and felony DUI per se based on Linnebur . We also reverse his conviction for failing to display proof of insurance, affirm his remaining convictions, and remand this case for further proceedings consistent with this opinion.

I. Background

¶ 2 In October 2015, Tun was pulled over by Officer Jeffrey Olson because there was no license plate or temporary permit on his car. He admitted to Officer Olson that the car was not registered and said that it belonged to his son. He did not produce a license or proof of insurance when Officer Olson requested them.

¶ 3 Officer Olson noticed the smell of alcohol coming from Tun's car. He also observed that Tun had watery, bloodshot eyes, and his movements were slower than those of a sober person. Tun admitted that he had consumed two beers that day. As a result, Officer Olson called for a DUI enforcement officer. When the officer arrived, Tun admitted to consuming ten to fifteen beers throughout the day, and he agreed to perform roadside sobriety maneuvers. He did not perform them as a sober person would, and he was placed under arrest. A blood alcohol test performed approximately one and a half hours after Tun was stopped revealed that his blood contained .26 grams of alcohol per 100 milliliters. In addition, Tun's driving record indicated that his license had been subject to various restraints

486 P.3d 494

since 1999, and it had been revoked in 2013 due to his status as a habitual traffic offender.

¶ 4 The People charged Tun with felony DUI and felony DUI per se, a violation of section 42-4-1301(1)(a), (2)(a), C.R.S. 2020, failing to present proof of insurance, a violation of section 42-4-1409(3), C.R.S. 2020, driving an unregistered vehicle, a violation of section 42-3-121(1)(a), C.R.S. 2020, DARP, a violation of section 42-2-206(1)(a), C.R.S. 2020, and DUR, a violation of section 42-2-138(1)(d), C.R.S. 2020. He was convicted as charged.

II. Felony DUI and DUI Per Se

A. Prior Convictions

¶ 5 If a defendant is convicted of DUI or DUI per se after he has three or more prior drug- or alcohol-related driving convictions, his misdemeanor DUI or DUI per se convictions become felonies. § 42-4-1301(1)(a), (2)(a). The People alleged that Tun had three prior DUI convictions. Before trial, Tun filed a motion to have his alleged prior convictions tried to the jury. He argued that prior convictions are elements of felony DUI and felony DUI per se and therefore must be proved to a jury beyond a reasonable doubt.

¶ 6 The trial court denied the motion and, after the jury rendered guilty verdicts on the misdemeanor DUI and DUI per se charges, his alleged prior convictions were tried to the court. The court found that Tun had the required number of prior convictions. His DUI and DUI per se convictions were therefore elevated from misdemeanors to felonies.

¶ 7 Tun first contends that the trial court erroneously denied his motion to treat prior qualifying convictions as elements of the charged felonies. He further contends that the trial court erred by requiring proof by a preponderance of the evidence instead of proof beyond a reasonable doubt. We agree.

¶ 8 As the supreme court made clear in Linnebur , ¶ 2, to obtain a felony DUI conviction, the People must prove to a jury, beyond a reasonable doubt, that (1) the defendant drove a "motor vehicle or vehicle"; (2) while "under the influence of alcohol or one or more drugs"; and (3) he had at least three prior drug- or alcohol-related driving convictions. § 42-4-1301(1)(a). Similarly, to obtain a DUI per se conviction, the jury must determine, beyond a reasonable doubt, that (1) the defendant drove a "motor vehicle or vehicle"; (2) when the defendant's blood alcohol content was "0.08 or more at the time of driving or within two hours after driving"; and (3) he had at least three prior drug- or alcohol-related driving convictions. § 42-4-1301(2)(a) ; Linnebur , ¶ 2. The trial court therefore erred by not permitting the jury to determine, beyond a reasonable doubt, whether Tun had three prior DUI convictions.

¶ 9 Based on this error, we reverse Tun's felony DUI and felony DUI per se convictions. On remand, if the People do not elect to retry Tun on charges of felony DUI and felony DUI per se, the trial court shall re-enter convictions for misdemeanor DUI and misdemeanor DUI per se and sentence him accordingly. Because the Linnebur court declined to resolve whether double jeopardy would bar retrial, we express no opinion on that issue. Linnebur , ¶ 32.

B. Equal Protection

¶ 10 Tun next contends, for the first time on appeal, that his felony convictions under the DUI statute, § 42-4-1301, and sentencing pursuant to section 42-4-1307(6.5), C.R.S. 2020, violate his right to equal protection.

¶ 11 Tun argues that, under the applicable statutory scheme, if a defendant has four or more DUI, driving while ability impaired (DWAI), or DUI per se convictions, he has "two or more prior convictions" under section 42-4-1307(6), but he also has "three or more prior convictions" under section 42-4-1301, permitting the People to bring felony charges if they choose to do so. Thus, at the prosecutor's discretion, a defendant with four or more qualifying convictions may be punished as a felon under section 42-4-1307(6.5) or as a misdemeanor offender under section 42-4-1307(6), which imposes lighter penalties. He contends the imposition of different penalties for the same conduct violates equal

486 P.3d 495

protection. See U.S. Const. amend. XIV ; Colo. Const. art. II, § 25.

¶ 12 In our original opinion in this case, we relied on People v. Quezada-Caro , 2019 COA 155, ¶ 39, ––– P.3d ––––, to reject Tun's equal protection arguments. After our opinion was released, Quezada-Caro was vacated by the supreme court on other grounds. People v. Quezada-Caro , (Colo. No. 19SC962, Dec. 21, 2020) 2020 WL 7868226 (unpublished order). Nonetheless, our conclusion that the plain language of these statutes undermines Tun's argument has not changed. See Colo. Med. Bd. v. Off. of Admin. Cts. , 2014 CO 51, ¶ 9, 333 P.3d 70 (noting that a court need not look further when giving effect to the plain and ordinary meaning of unambiguous statutory provisions).

¶ 13 Section 42-4-1307(6) applies, "[e]xcept as provided in section 42-4-1301(1)(a), (1)(b), and (2)(a)." § 42-4-1307(6)(a). We read the word "except" to mean that if there is a conflict between section 42-4-1307(6) and the identified subsections of section 42-4-1301, the identified subsections are controlling.

¶ 14 Moreover, in several ways, the statutory scheme carefully carves out exceptions to demarcate the various degrees of DUI offenses so that one cannot be charged under multiple sections for the same conduct.

¶ 15 First, as noted above, section 42-4-1307(6) permits misdemeanor conviction and sentencing on the basis of two or more prior qualifying convictions while section 42-4-1301 only permits felony conviction and sentencing on the basis of three or more prior qualifying convictions. Thus, the minimum number of convictions required is different.

¶ 16 Second, section 42-4-1301 requires that the qualifying prior convictions arise from "separate and distinct criminal episodes" while section 42-4-1307(6) does not. Thus, for example, while a defendant could receive an aggravated sentence under section 42-4-1307(6) for a single criminal episode involving a DUI and three counts of vehicular homicide, such a defendant could not be subject to felony DUI charges under section 42-4-1301(1)(a) because there were not three separate and distinct criminal episodes.

¶ 17 Third, section 42-4-1307(6) contains, as additional qualifying prior offenses, aggravated driving with a revoked license1 and DUR. But these prior offenses do not qualify as prior convictions for felony DUI, DWAI, or DUI per se purposes. See § 42-4-1301(1)(a), (1)(b), (2)(a).

¶ 18 For the foregoing reasons, we reject Tun's contention that the misdemeanor and felony DUI statutes...

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