Ramirez v. People, 82SC253
| Citation | 682 P.2d 1181 |
| Decision Date | 04 June 1984 |
| Docket Number | No. 82SC253,82SC253 |
| Parties | Gregory RAMIREZ, Petitioner, v. The PEOPLE of the State of Colorado, Respondent. |
| Court | Supreme Court of Colorado |
David F. Vela, Colo. State Public Defender, Barbara S. Blackman, Deputy State Public Defender, Denver, for petitioner.
Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., John Daniel Dailey, Asst. Atty. Gen., Denver, for respondent.
We granted certiorari to review People v. Ramirez, 652 P.2d 1077 (Colo.App.1982) in which the Court of Appeals held that "taking a narcotic drug" and "taking from a pharmacy" are not elements of the offense of aggravated robbery of drugs. We disagree with the Court of Appeals' holding, but affirm the judgment because the Jefferson County District Court did not commit plain error affecting the defendant's substantial rights.
On August 28, 1978, the defendant and a companion entered the Wise Pharmacy in Lakewood, Colorado. The pharmacist on duty recognized the two men as the same men who had robbed the pharmacy of drugs and cash one month earlier on July 24, 1978, and triggered a silent alarm. In response to the defendant's demand, the pharmacist gave drugs and money to the two men. Meanwhile, Lakewood police officers responded to the alarm, observed the robbery in progress, and apprehended the two men as they left the pharmacy. The officers recovered the money and drugs taken from the pharmacy and a handgun that was exhibited during the robbery.
The defendant was charged with two counts of aggravated robbery of drugs (one count for the July robbery and one count for the one in August) under section 18-4-303, 8 C.R.S. (1978), one count of violent crime (use of a handgun during the August 28 robbery) under section 16-11-309, 8 C.R.S. (1978), and four habitual criminal counts under section 16-13-101, 8 C.R.S. (1978). The jury found the defendant guilty of both aggravated robbery counts, and found by a special verdict form that the defendant had taken narcotic drugs from a pharmacy. The jury also returned a guilty verdict on the violent crime count and subsequently returned guilty verdicts on the four habitual criminal counts. The district court sentenced the defendant to concurrent terms of twenty to thirty years for aggravated robbery of drugs and to a life term as an habitual criminal. The Court of Appeals affirmed the convictions.
The issues before us are whether the district court committed plain error by not including "taking a narcotic drug" and "taking from a pharmacy" as elements in the definitional jury instruction, and whether two of the defendant's prior felony convictions are constitutionally invalid. We conclude that there was no plain error in the jury instructions and affirm the habitual criminal sentence.
The defendant was charged with violations of section 18-4-303, 8 C.R.S. (1978), which at the time of the offense provided:
A person who takes any narcotic drug from any pharmacy or other place having lawful possession thereof under the aggravating circumstances defined in section 18-4-302 is guilty of aggravated robbery of drugs.
The district court listed the "aggravating circumstances defined in section 18-4-302" in a separate instruction. 1 The instruction began: "A person commits the crime of aggravated robbery if:", then listed the elements, 2 and concluded by instructing the jury that if it found that all of these elements were established beyond a reasonable doubt, it should find the defendant guilty of aggravated robbery. The verdict forms for both counts of aggravated robbery of drugs contained this language:
We, the jury, find the Defendant ... GUILTY of ... Aggravated Robbery and further find:
One of the things of value taken was a narcotic drug or drugs from any pharmacy or the place having lawful possession thereof.
[ ] No.
___
The jury checked the box marked yes on both verdict forms, and the foreman signed both forms to indicate guilty verdicts.
The defendant asserts that the district court should have included the elements contained on the verdict forms with the list of circumstances required for a finding of aggravated robbery so that all of the elements of aggravated robbery of drugs could be found in a single instruction. He claims prejudice because the instructions utilized do not clearly state that the taking of drugs from a pharmacy must be established beyond a reasonable doubt. 3
The Court of Appeals resolved the issue by holding that the factual determination that drugs have been taken from a pharmacy is not an element of an offense. Instead, the Court of Appeals ruled that section 18-4-303 is merely a punishment enhancement statute, not a separate offense. The People have conceded that the Court of Appeals' ruling is incorrect. In People v. Lake, 195 Colo. 454, 580 P.2d 788 (1978), this court discussed the separate offense of aggravated robbery of drugs and stated: "An essential element of this crime is proof that the drug taken is ... a narcotic drug [which] must be proven beyond a reasonable doubt." 580 P.2d at 790.
Our disagreement with the Court of Appeals, however, does not mandate a reversal of this case. The defendant failed to preserve this error by contemporaneous objection at trial or in his motion for a new trial and, therefore, our inquiry is limited to whether the jury instructions utilized amount to plain error. Crim.P. 30, 33(a), and 52(b); People v. Weller, 679 P.2d 1077 (Colo.1984); People v. Saghy, 190 Colo. 79, 543 P.2d 1243 (1975). 4 Each case in which it is alleged that plain error has been committed must be resolved in light of its particular facts and the law that applies to those facts. People v. Peterson, 656 P.2d 1301 (Colo.1983); People v. Mills, 192 Colo. 260, 557 P.2d 1192 (1976). To qualify as plain error, there must be a reasonable possibility that the alleged erroneous instruction contributed to the defendant's conviction. People v. Weller, 679 P.2d 1077; People v. Dillon, 655 P.2d 841 (Colo.1982); People v. Aragon, 186 Colo. 91, 525 P.2d 1134 (1974).
Failure to properly instruct the jury with respect to an essential element of the crime charged constitutes plain error. People v. Mattas, 645 P.2d 254 (Colo.1982); People v. Hardin, 199 Colo. 229, 607 P.2d 1291 (1980). The instructions in this case defined "narcotic drugs" and "pharmacy" and contained the information charging the defendant with taking narcotic drugs from a pharmacy. The verdict form indicates that the jury found that the elements "taking a narcotic drug" and "taking from a pharmacy" were established by the People. The defendant's argument, however, is that the jury was not instructed on what burden of proof to apply to the elements listed on the special verdict form.
Jury instructions must define all the elements of an offense so that the jury may decide whether they have been established beyond a reasonable doubt. People v. Mattas, 645 P.2d 254; People v. Hardin, 607 P.2d 1291. While it would have been sounder judicial practice to include all the elements of the offense in one instruction, we conclude after examining the instructions as a whole and the particular facts of this case that the district court committed no plain error. First, the instructions stated that all the elements of the crime had to be established beyond a reasonable doubt and that the defendant's guilt had to be established beyond a reasonable doubt. No other burden of proof was explained to the jury. Second, the evidence establishing that the defendant took drugs from a pharmacy was uncontroverted. 5 See People v. Hunter, 666 P.2d 570, 572 (Colo.1983). Therefore, there is no reasonable possibility that the allegedly erroneous instructions contributed to the defendant's conviction.
The defendant also asserts that his habitual criminal sentence was improper because the guilty pleas that were the basis of two of his previous felonies were constitutionally invalid.
Under Colorado's habitual criminal statute, section 16-13-101(2), 8 C.R.S. (1983 Supp.), a person convicted of a felony who has been convicted of three previous felonies shall be imprisoned for life. 6 The defendant has been convicted of four previous felonies and, therefore, we must affirm the habitual criminal sentence if one of the two contested guilty pleas was valid. People v. Bergstrom, 190 Colo. 105, 544 P.2d 396 (1975). The defendant contests his 1965 guilty plea to conspiracy to commit aggravated robbery and his 1974 guilty plea to attempted possession of narcotic drugs. We conclude that the 1974 plea was constitutionally valid. 7
In People v. Leonard, 673 P.2d 37 (Colo.1983), this court examined the...
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